Opinion
No. CIV S-08-0738 DAD.
September 29, 2009
ORDER
This social security action was submitted to the court without oral argument for ruling on plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment. For the reasons explained below, plaintiff's motion is granted, defendant's motion is denied, the decision of the Commissioner of Social Security (Commissioner) is reversed, and the matter is remanded for further proceedings consistent with this order.
PROCEDURAL BACKGROUND
In October 1998, plaintiff filed applications for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act) and for Supplemental Security Income (SSI) under Title XVI of the Act, alleging disability commencing on September 8, 1997, due to pain in her arms, hands, shoulders, and neck. (Transcript (Tr.) at 27, 42.) The applications were denied initially in November 1998. (Id.) After they were denied upon reconsideration, a hearing was held on July 26, 1999, before Administrative Law Judge (ALJ) James N. Baker. (Tr. at 27.) Plaintiff, represented at that time by attorney Gary C. Nelson, testified at the hearing, as did a vocational expert. The ALJ issued a decision on October 1, 1999, finding that plaintiff was not disabled at any time through the date of the decision. (Tr. at 27-32.)
ALJ Baker found at that time that the evidence "supports a finding that the claimant has degenerative disk disease of the cervical spine, carpal tunnel syndrome, and a tear of the superior labial margin of her right shoulder, impairments that cause significant vocationally relevant limitations." (Tr. at 28.) The ALJ determined that plaintiff has a residual functional capacity for light work, reduced by inability to push and pull overhead with her right arm, reach overhead with her right arm, or climb ladders, ropes, or scaffolds. (Tr. at 32.)
The court takes judicial notice of Laniohan v. Social Security, CIV S-01-0983 LKK PAN PS (E.D. Cal.), a case filed on May 21, 2001, in which Frances J. Laniohan, proceeding pro se, sought judicial review of the Commissioner's final decision on her 1998 applications. (Case No. CIV S-01-0983 LKK PAN PS, Order to Show Cause filed May 7, 2002 (Doc. No. 15) at 1.) On September 18, 2001, the court approved the parties' stipulation in that case to remand pursuant to Sentence Six of 42 U.S.C. § 405(g). (Id., Stip. Order (Doc. No. 11).) The basis for remand was that the cassette tape of the July 26, 1999 administrative hearing could not be located. The stipulation and order provided that the Appeals Council was to remand the case to an ALJ for a new hearing and new decision. (Id.) On January 29, 2002, the 2001 case was reopened after defendant filed an answer and a certified administrative transcript. (Id., Answer Admin. Tr. (Doc. Nos. 13 14).) In findings and recommendations filed on March 28, 2003, Magistrate Judge Peter A. Nowinski found that the ALJ's determinations were supported by the record and free of legal error, and recommended that plaintiff's motion for summary judgment be denied and defendant's motion for summary judgment be granted. (Id., Findings Recommendations (Doc. No. 21).) The findings and recommendations were adopted by the assigned district judge on August 22, 2003. (Id., Order (Doc. No. 24).)
A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
On May 1, 2002, plaintiff filed new applications for DIB and SSI, again alleging onset of disability on September 8, 1997, because of severe pain in her neck, shoulders, hands, arms, legs, and back. (Tr. at 114-18, 126-35.) The applications were denied initially in August 2002 and upon reconsideration in April 2003. (Tr. at 36-38, 52-63.) On November 12, 2003, a hearing was held before ALJ William C. Thompson, Jr. (Tr. at 64, 428-59.) Plaintiff, then represented by Ann M. Cerney, Esq., appeared at the hearing and testified, as did a vocational expert. (Tr. at 428-29.) In a decision issued on February 19, 2004, the ALJ found plaintiff not disabled. (Tr. at 42-48.) On April 29, 2005, the Appeals Council granted plaintiff's request for review, vacated the hearing decision, and remanded the case for a new decision. (Tr. at 103-05.)
ALJ Thompson found that plaintiff's bilateral carpal tunnel syndrome and elbow pain, right shoulder pain, neck pain, right groin pain, asthma, and depression were severe impairments. (Tr. at 47.) The ALJ determined that plaintiff had the residual functional capacity to perform a range of light work in that she "is able to occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds," "can sit for about 6 hours and stand and walk for about 6 hours in an 8-hour workday," "is precluded from repetitive use of both arms," "is limited to occasional bending, stooping, twisting, squatting, kneeling, crawling, and climbing," "must avoid more than occasional exposure to heights, moving machinery, dust, and fumes," and, "[b]ecause of her depression, Claimant is limited to simple instructions and one and two-step processes." (Id.)
The Appeals Council noted inconsistent findings related to the ALJ's determination that plaintiff could perform her past relevant work as a security guard. (Tr. at 104-05.) The Appeals Council directed the ALJ to give further consideration to plaintiff's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations. (Tr. at 105.)
At the remand hearing held on March 28, 2006, plaintiff, again represented by attorney Ann Cerney, appeared and testified. (Tr. at 460-97.) A vocational expert also testified. (Id.) On July 8, 2006, the ALJ issued a second unfavorable decision. (Tr. at 15-22.) The following findings were entered:
1. The claimant met the insured status requirements of the Social Security Act only through December 31, 2002.
2. The claimant has not engaged in substantial gainful activity since September 8, 1997, the alleged onset date ( 20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).
3. The claimant has the following severe impairments: carpal tunnel syndrome, diabetes mellitus, and asthma ( 20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of 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 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to lift and/or carry forty pounds occasionally and twenty pounds frequently. There is no limitation on the ability to sit, stand or walk. She should avoid hazards such as unprotected heights or moving machinery. She should not be exposed to excessive amounts of smoke, dust, fumes or other respiratory irritants. The claimant should perform power gripping activities only occasionally.
6. The claimant is unable to perform any past relevant work ( 20 CFR 404.1565 and 416.965).
7. The claimant was born on June 28, 1953 and was forty-four years old on the alleged disability onset date, which is defined as a "younger individual age 18-44"[] ( 20 CFR 404.1563 and 416.963). During the pendency of this claim and prior to her date last insured, the claimant attained the age of 50 and is now regarded as "closely approaching advance[d] age."
8. The claimant has a "marginal" education and is able to communicate in English ( 20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform ( 20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).
11. The claimant has not been under a "disability," as defined in the Social Security Act, from September 8, 1997 through the date of this decision ( 20 CFR 404.1520(g) and 416.920(g)).
(Tr. at 15-23.)
On February 8, 2008, the Appeals Council denied plaintiff's request for review of the ALJ's July 8, 2006 decision. (Tr. at 5-8.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 405(g) by filing the complaint in this action on April 7, 2008.
LEGAL STANDARD
The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record as a whole and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Morgan, 169 F.3d at 599); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
A reviewing court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion. Jones, 760 F.2d at 995. The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or nondisability, the finding of the ALJ is conclusive, Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
In determining whether or not a claimant is disabled, the ALJ should apply the five-step sequential evaluation process established under Title 20 of the Code of Federal Regulations, Sections 404.1520 and 416.920. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step process has been summarized as follows:
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of 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 disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n. 5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
APPLICATION
Plaintiff advances the following arguments in support of her motion for summary judgment or remand: (1) the ALJ failed to articulate any reasons for not crediting the opinions of multiple treating and examining sources in favor of the internally consistent opinions of examining physician Dr. McIntire and mistakenly found that the record does not contain any opinions from treating or examining physicians indicating that plaintiff is disabled or has limitations greater than those determined by the ALJ; (2) the ALJ failed to articulate specific and legitimate reasons for not crediting the 2003 and 2005 opinions of examining psychiatrist Dr. Kalman, particularly since the ALJ's 2004 hearing decision specifically credited Dr. Kalman's 2003 opinion; and (3) the ALJ erred in failing to find plaintiff's cervical spine condition to be a severe impairment when objective MRI evidence confirmed that plaintiff suffers from degenerative disk disease of the cervical spine. These arguments are addressed below.
I. ALJ's Failure to Articulate Reasons for Not Crediting Certain Medical Opinions
The weight to be given to medical opinions in Social Security disability cases depends in part on whether the opinions are proffered by treating, examining, or nonexamining health professionals. Lester, 81 F.3d at 830; Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). "As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant." Lester, 81 F.3d at 830. This is so because a treating doctor is employed to cure and has a greater opportunity to know and observe the patient as an individual. Smolen v. Chater, 80 F.3d at 1273, 1285 (9th Cir. 1996); Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir. 1990).
A treating physician's uncontradicted opinion may be rejected only for clear and convincing reasons, and a treating physician's opinion that is controverted by another doctor may be rejected only for specific and legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d at 830-31. "The opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a nonexamining physician." Lester, 81 F.3d at 830. An examining physician's uncontradicted opinion, like a treating physician's, may be rejected only for clear and convincing reasons, and when an examining physician's opinion is controverted by another doctor, the opinion may be rejected only for specific and legitimate reasons supported by substantial evidence in the record. Id. at 830-31.
In order to meet the burden of setting forth specific, legitimate reasons for giving less weight to the controverted opinion of a treating or examining physician, the ALJ must set out a detailed and thorough summary of the facts and conflicting clinical evidence, state his interpretation of the evidence, and make specific findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The ALJ must explain why any significant probative evidence has been rejected and must reach a decision supported by substantial evidence. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003); Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984).
"The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Lester, 81 F.3d at 831 (emphasis in original). See id. at 831-32 (holding that the ALJ's rejection of the opinions of a treating physician and an examining psychologist was not warranted where the rejection was based on a nontreating, nonexamining doctor's opinion supplemented only by unsupported and unwarranted speculation that the treating and examining doctors were misrepresenting the claimant's condition or were not qualified to evaluate it); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990) (holding that the nonexamining doctor's opinion "with nothing more" did not constitute substantial evidence for rejecting the opinions of treating or examining physicians);Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (holding that the report of the nontreating, nonexamining doctor, even when combined with the ALJ's own observation of the claimant at the hearing, did not constitute substantial evidence and did not support the ALJ's decision to reject the examining physician's opinion that the claimant was disabled).
Here, plaintiff's medical history through the date of the Commissioner's final decision on July 8, 2006, spans a dozen years and includes treatment of multiple impairments. Prior to December 31, 2002, her date last insured, plaintiff was diagnosed with the following impairments, many of them diagnosed repeatedly: asthma in 1991; myofascial pain syndrome involving plaintiff's neck and arms due to a work injury in 1994; bilateral carpal tunnel syndrome first diagnosed in 1994 based on nerve conduction studies; moderately advanced degenerative disc disease diagnosed in 1997 based on a cervical spine x-ray; a cervical disc bulge diagnosed in 1999 based on an MRI showing a right posterolateral disc bulge extending to and threatening the right anterolateral margin of the adjacent spinal cord; right shoulder strain with a partial labral tear diagnosed in 1999 based on an MRI of plaintiff's right shoulder; right groin strain, left eye injury, and exposure to chlorine diagnosed in 1999; right shoulder impingement syndrome, cervical arthrosis, lumbago, and right elbow pain diagnosed in 2000; generalized mild inflammatory condition diagnosed in 2000; moderate cervical spondylosis, mild narrowing of the C5-6 foramen on the right, and mild disc bulges at multiple levels in 2002 based on an MRI of the cervical spine that month; chlorine-induced asthma, tennis elbow on the left side, and right lateral epicondylitis in 2002. In 2003, plaintiff was diagnosed with adjustment disorder and depression secondary to medical condition, with a GAF of 60; the examining psychiatrist opined that the limitations assessed in his medical source statement had existed at the assessed level of severity since 1997. Nerve conduction studies in 2005 reflected that plaintiff's carpal tunnel syndrome was slightly worse, particularly in her left wrist. In 2005, the examining psychiatrist diagnosed mental disorder and depression due to medical condition, with a GAF of 55, and again opined that the limitations assessed in his medical source statement had existed at the assessed level of severity since 1997.
In support of his determination that plaintiff's severe impairments consist solely of carpal tunnel syndrome, diabetes mellitus, and asthma, the ALJ offers a summary of the medical evidence that acknowledges most of plaintiff's diagnoses but minimizes the diagnosed impairments and does not mention the opinions of plaintiff's treating physicians with respect to the effect of any of those impairments on plaintiff's physical or mental ability to do basic work activities. (Tr. at 17-19.) The ALJ's subsequent discussion of residual functional capacity is focused primarily on plaintiff's testimony and the ALJ's reasons for finding that testimony not entirely credible. (Tr. at 19-21.)
Although the ALJ states that he considered opinion evidence, his written decision fails to demonstrate such consideration. (Id.) First, in perceiving plaintiff's allegations as inconsistent with the doctors' treatment records, the ALJ asserts that "[t]he record does not contain any opinions from treating or examining physicians indicating that the claimant is disabled or even has limitations greater than those determined in this decision." (Tr. at 20.) Second, the ALJ concludes his analysis of plaintiff's residual functional capacity in the following manner:
As for the opinion evidence, I give substantial weight to the assessments of the State Agency medical consultants and consultative examiners, particularly the August 29, 2005 report of Dr. McIntire, because they are consistent with and well-supported by the weight of the evidence of record. Further, they are rendered by physicians who are experts in evaluating the medical issues in disability claims under the Social Security Act. I further note that the claimant's treating orthopedist, Vincent C. Leung, M.D., stated on April 5, 2005 that her diagnosis was bilateral mild to moderate carpal tunnel syndrome but can perform modified light duty. Dr. Leung recommended continued conservative treatment and the claimant requested a prescription for "plain Tylenol Extra Strength" (B21F/9-10 [tr. at 373-74]). This assessment supports the findings of the State Agency physician and consultant.
(Tr. at 20-21.)
Plaintiff argues persuasively that the record contains many instances in which treating, examining, and nontreating, nonexamining physicians found limitations greater than those determined by the ALJ. Plaintiff's motion for summary judgment charts examples of such disparities, and the court notes some of them here. Dr. Leung, whose 2005 opinion was cited by the ALJ, opined in 2005 and 2006 that plaintiff should avoid repetitive work with both upper extremities, just as Dr. Porecha had opined in 2002 and Dr. Westin had opined in 2000. (Tr. at 281, 330, 367, 371.) Both of the state agency physicians opined in 2002 and 2003 that plaintiff should not lift more than 20 pounds occasionally and 10 pounds frequently, could stand or walk for about 6 hours in an 8-hour workday, could sit for about 6 hours in an 8-hour workday, and should only occasionally climb, balance, stoop, kneel, crouch, and crawl; in addition, the second state agency physician opined that plaintiff should never climb ladders, ropes, and scaffolds. (Tr. at 185-87, 239-41.) Dr. Porecha and the state agency physicians opined that plaintiff should avoid reaching overhead. (Tr. at 187, 330.) All of these limitations are greater than those determined by the ALJ.
Except for the environmental limitations, plaintiff's residual functional capacity as determined by the ALJ matches the limitations contained in the final opinions of examining physician Steve McIntire, M.D., a board-certified neurologist who examined plaintiff on three dates and issued four opinions.
When Dr. McIntire performed his first neurologic evaluation of plaintiff on July 26, 2002, plaintiff's chief complaint was "[w]hole body pain." (Tr. at 175.) The only medical record available to Dr. McIntire at that time was an otherwise unidentified clinic report, which he reviewed. (Id.) Based on that clinic report, "a vague history" by plaintiff, and a physical and neurological examination of plaintiff, Dr. McIntire opined that plaintiff had no functional limitations on a neurological basis. (Tr. at 175-78.)
On March 11, 2003, Dr. McIntire performed his first orthopedic evaluation of plaintiff, whose chief complaint at that time was "[s]houlder injury." (Tr. at 192.) The only medical record available to Dr. McIntire at that time was his prior evaluation. (Id.) Based on "a very different history" given by plaintiff and his physical and orthopedic examination of plaintiff, Dr. McIntire again opined that plaintiff had no functional limitations. (Tr. at 192-94.)
Dr. McIntire examined plaintiff again on August 29, 2005, and prepared separate neurologic and orthopedic evaluations, accompanied by separate medical source statement forms. (Tr. at 344-51, 353-61.) Plaintiff's chief neurologic complaint at that time was carpal tunnel syndrome, and her chief orthopedic complaints were right shoulder injury, tennis elbow, and neck and back pain. (Tr. at 344, 353.) Once again, Dr. McIntire had been provided with no medical records to review. (Id.) He stated that it would be worthwhile to review all the relevant evidence, noting in particular the EMG nerve conduction study done in February 2005 and the cervical and lumbar x-rays and MRI's plaintiff told him about. (Id.) In his neurologic evaluation, Dr. McIntire opined that plaintiff should not engage in more than occasional power gripping activities with her hands and that her overall lifting and carrying should be limited to not more than 20 pounds frequently and 40 pounds occasionally; he found no other functional limitations suggested by the neurologic examination. (Tr. at 347-51.) In his orthopedic evaluation, Dr. McIntire opined that plaintiff's overall lifting and carrying should be limited to not more than 20 pounds frequently and 40 pounds occasionally; he found no other functional limitations suggested by the orthopedic examination. (Tr. at 357-61.)
It appears that two separate evaluations and forms were prepared in order to better respond to the disability analyst's separate consultation requests, each of which lists very specific questions to be answered by the contracting consultant. (Tr. at 352, 362.) Although plaintiff has argued that the two opinions dated August 29, 2005, are internally inconsistent, the court does not find them so when considered as separate evaluations of plaintiff's neurologic and orthopedic conditions.
Far from being "consistent with and well-supported by the weight of the evidence of record," as the ALJ found, Dr. McIntire's opinions appear to contradict the opinions of numerous treating and examining physicians, and even the opinions of the state agency physicians, with regard to plaintiff's limitations. Dr. McIntire's opinions were based on isolated examinations of plaintiff without any opportunity to review the evidence of record. For this reason, Dr. McIntire's opinions are insufficient to contradict the numerous treating and examining physicians' opinions. In the absence of clear and convincing reasons for rejecting the opinions of plaintiff's treating physicians and the opinions of other physicians who examined plaintiff, the ALJ erred in his treatment of the medical opinions on file. Even if the opinions of the treating physicians and other examining physicians are controverted to some degree by Dr. McIntire's opinions, the ALJ has not provided specific and legitimate reasons supported by substantial evidence in the record for giving greater weight to Dr. McIntire's opinions.
The court finds that plaintiff is entitled to summary judgment on her claim that the ALJ failed to articulate a proper reason for favoring the opinions of Dr. McIntire over the opinions of plaintiff's treating physicians and other examining physicians. On remand, new orthopedic and neurologic opinions should be obtained from Dr. McIntire, or from another examining physician, and that physician must be provided with plaintiff's complete medical record for review. After developing the record further in this way, the ALJ must reevaluate the opinion evidence, explain the weight given to each physician's opinion, and explain why any significant probative evidence has been rejected.
II. ALJ's Failure to Articulate Legitimate Reasons for Rejecting Dr. Kalman's Opinions
Les P. Kalman, M.D., Psy.D., M.F.C.C., performed psychiatric evaluations of plaintiff on September 15, 2003, and September 3, 2005. On each occasion, Dr. Kalman prepared a report and a medical source statement concerning the nature and severity of plaintiff's mental impairment. (Tr. at 313-19, 389-96.) On each occasion, Dr. Kalman also itemized the medical records that were provided to him in connection with his evaluation and stated that he considered the records. (Tr. at 319, 392.) Dr. Kalman's opinions constitute the only opinion evidence in the file regarding plaintiff's mental impairments.
In his 2003 medical source statement, Dr. Kalman found plaintiff moderately limited in the ability to understand and remember detailed instructions or tasks which may or may not be repetitive; to carry out such instructions; and to maintain attention and concentration for extended periods. He found her mildly limited in the ability to carry out short and simple instructions or tasks; to respond appropriately to expected or unexpected changes in the work setting; to travel in unfamiliar places and/or use public transportation; and to set realistic goals or to make plans independently of others. He opined that plaintiff's level of impairment would increase with a demand for precision, a need to make quick and accurate, independent decisions in problem solving on a consistent basis, or a need to make accurate, independent decisions in problem solving on a consistent basis. He also opined that her impairments were sufficiently severe that she would be unable to complete a workday, if employed in a full-time job, more than three or four times per month. (Tr. at 313-16.)
In his 2005 medical source statement, Dr. Kalman found plaintiff moderately limited in the ability to understand and remember detailed instructions or tasks which may or may not be repetitive and to carry out detailed instructions which may or may not be repetitive. He found her mildly limited in the ability to maintain attention and concentration for extended periods; to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and to accept instructions and respond appropriately to criticism from supervisors. He opined that plaintiff's level of impairment would increase with such factors as unruly, demanding or disagreeable customers even on an infrequent basis; production demands or quotas; a demand for precision; a need to make quick and accurate, independent decisions in problem solving on a consistent basis; or a need to make accurate, independent decisions in problem solving on a consistent basis. He opined again that her impairments were sufficiently severe that she would be unable to complete a workday, if employed in a full-time job, more than three or four times per month. (Tr. at 393-96.)
The ALJ acknowledged that plaintiff suffers from depression but declined to credit the limitations assessed by Dr. Kalman for the following reason:
I emphasize that the claimant underwent these examinations not in an attempt to seek treatment for symptoms, but rather, through attorney referral and in connection with an effort to generate evidence for the current appeal. Further the doctor was presumably paid for the report. Although such evidence is certainly legitimate and deserves due consideration, the context in which it was produced cannot be entirely ignored. In light of the foregoing, however, the fact that the claimant has not sought or received any mental health treatment for her alleged depression calls into question the limitations assessed by the examiner. Accordingly, I conclude that the claimant's alleged depression does not rise to the level of a severe impairment.
(Tr. at 19.)
"`[I]t is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.'" Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (quoting Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989)). Moreover, the Ninth Circuit has found it "common knowledge that depression is one of the most under reported illnesses in the country because those afflicted often do not recognize that their condition reflects a potentially serious mental illness." Id.
Here, plaintiff testified at the administrative hearing in 2003 that before Dr. Kalman evaluated her, no other doctor had ever discussed her feelings and emotions with her, no other doctor had never asked her about her emotions and how her medical impairments were affecting her emotions, and she did not know that depression was a disease. (Tr. at 449.) At the remand hearing in 2006, plaintiff testified that she was not receiving any kind of medical treatment for a mental or emotional problem but had only obtained medical coverage about a year ago, had just begun seeing doctors, and was being treated for newly discovered problems, including diabetes, high blood pressure, and high cholesterol. (Tr. at 471.) The court finds that plaintiff's failure to diagnose herself as depressed and her subsequent failure to seek treatment for depression once diagnosed do not justify rejection of the limitations assessed by Dr. Kalman.
It is, of course, well established that "`[t]he ALJ is responsible for determining credibility and resolving conflicts in medical testimony.'" Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (quoting Magallanes, 881 F.2d at 752). Thus, where a physician's opinion is solicited by the claimant's counsel, that fact may be used in conjunction with other evidence in the record as a ground for questioning the physician's credibility and for disregarding his opinions. Id. at 523. In this case, however, the ALJ has not used the fact that Dr. Kalman's opinions were solicited by plaintiff's counsel in conjunction with any other evidence in the record to question the limitations assessed by the examining psychiatrist, since no evidence of actual improprieties or any other evidence has been introduced. See Lester, 81 F.3d at 832.
In Burkhart v. Bowen, 856 F.2d 1335 (9th Cir. 1988), the Ninth Circuit permitted an ALJ to question a doctor's credibility where the doctor's opinion had been solicited by the claimant's counsel. Saelee, 94 F.3d at 522-23. The court in Burkhart reasoned that the ALJ's comment regarding the doctor's opinion was "a permissible credibility determination given the evidence before the ALJ." 856 F.2d at 1339. More recently, the Ninth Circuit stated in Lester that "[t]he purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them." 81 F.3d at 832. As noted in Saelee, Lester could not supersede the law established in Burkhart because only a panel sitting en banc may overturn Ninth Circuit precedent. 94 F.3d at 523. Thus, the decisions in Burkhart and Lester can be reconciled as holding that, where a physician's opinion is solicited by plaintiff's counsel, that fact may be used in conjunction with other evidence in the record to question the physician's credibility and disregard his opinions, but may not be relied upon as the sole reason for rejecting the physician's opinion as it was here.
As set forth fully supra, "[t]o reject the uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester, 81 F.3d at 830-31). Here, the ALJ rejected Dr. Kalman's uncontradicted opinions regarding plaintiff's mental impairments without stating clear and convincing reasons for doing so. Dr. Kalman's opinions are based on his examination of plaintiff as well as a review of objective medical data and the reports of the physicians who treated plaintiff's physical impairments. Cf. Bayliss, 427 F.3d at 1217 (affirming ALJ's rejection of psychological assessments by doctors who did not review objective medical data or reports from treating physicians or counselors and based their opinions solely on the claimant's complaints and information from her family, friends, and a former counselor).
The court finds that the ALJ failed to articulate proper reasons for not crediting Dr. Kalman's uncontroverted opinions. Plaintiff is entitled to summary judgment on this claim. On remand, the ALJ must reconsider Dr. Kalman's opinions and either credit them or articulate proper reasons for rejecting them.
III. ALJ's Failure to Find Plaintiff's Cervical Spine Condition a Severe Impairment
At step two of the sequential evaluation process, the ALJ must determine if the claimant has a medically severe impairment or combination of impairments. Smolen, 80 F.3d at 1289-90 (citingYuckert, 482 U.S. at 140-41). Under the Commissioner's regulations, "[a]n impairment or combination of impairments is not severe if it does not significantly limit [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 416.921(a). The severity regulation serves to "identify[] at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account." Yuckert, 482 U.S. at 153. "Step two, then, is `a de minimis screening device [used] to dispose of groundless claims[.]'" Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Smolen, 80 F.3d at 1290).See also Edlund v. Massanari, 253 F.3d 1152, 1158-59 (9th Cir. 2001). "An impairment or combination of impairments may be found `not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work.'" Webb, 433 F.3d at 686 (quoting Smolen, 80 F.3d at 1290, and adding emphasis).
Basic work activities encompass "the abilities and aptitudes necessary to do most jobs," including (1) physical functions such as walking, standing, sitting, lifting and carrying, (2) capacities such as seeing, hearing, and speaking, (3) understanding, carrying out, and remembering simple instructions, (4) use of judgment, (5) responding appropriately to supervision, co-workers, and usual work situations, and (6) dealing with changes in a routine work setting. 20 C.F.R. § 416.921(b).
Here, the treating physicians' records and the evaluations of examining physicians who reviewed the record reflect that as early as September 24, 1997, an MRI scan of plaintiff's cervical spine showed a right posterolateral C6-7 bulge extending to and threatening the right anterolateral margin of the adjacent cord (tr. at 158). In 1999, Dr. Porecha diagnosed a cervical disc bulge at the C6-7 level and noted treatment of plaintiff with cervical traction. (Tr. at 153-69.) In May 2000 Dr. Westin diagnosed cervical arthrosis. (Tr. at 280.) An MRI scan of plaintiff's cervical spine on September 20, 2002, showed loss of height of discs throughout the mid and lower cervical region, most prominently at C5-6 and C6-7, moderate uncinate hypertrophy from C3 through C7, mild broad-based bulges of the discs at multiple levels, and mild narrowing of the right C5-6 neural foramen, leading to an impression of moderate cervical spondylosis. (Tr. at 356.) In his November 4, 2002 report as a Qualified or Agreed Medical Evaluator, Dr. Porecha diagnosed cervical sprain/strain, found deterioration in plaintiff's condition, and concluded that, among other preclusions, plaintiff's cervical pain should preclude her from repetitive flexion/extension of the neck. (Tr. at 328, 330.) On August 2005, Dr. McIntire diagnosed probable mild degenerative osteoarthritis of the cervical and lumbar spine and noted mild diffuse tenderness on palpation of the cervical region. (Tr. at 356.)
Substantial evidence in the record therefore supports a determination that plaintiff has a medically determinable spine impairment that constitutes more than a slight abnormality and has more than a minimal effect on her ability to perform basic work activities. On this record, the court finds that the ALJ erred when he failed to find that plaintiff's degenerative disc disease of the cervical spine is a severe impairment at step two of the sequential evaluation process. Plaintiff is entitled to summary judgment on this claim as well.
CONCLUSION
The court will remand the matter for further administrative proceedings consistent with this order. See Widmark v. Barnhart, 454 F.3d 1063, 1065 (9th Cir. 2006) (reversing and remanding for proceedings consistent with the court's decision that the ALJ improperly rejected the examining physician's opinion). Remand is required so that the ALJ can give proper credit to the opinions of treating and examining sources after obtaining new orthopedic and neurologic opinions by an examining physician who has reviewed the complete medical record. Remand is also required so that the ALJ can reconsider Dr. Kalman's opinions and either credit the limitations assessed by Dr. Kalman or articulate proper reasons for rejecting them. Finally, remand is required so that the ALJ can include plaintiff's degenerative disc disease of the cervical spine condition as a severe impairment at step two of the sequential evaluation process and give the impairment proper consideration at the remaining steps.
The record in these areas has not been thoroughly developed and further administrative proceedings will allow for that development. See Ghokassian v. Shalala, 41 F.3d 1300, 1304 (9th Cir. 1994) ("Generally, we direct the award of benefits in cases where no useful purpose would be served by further administrative proceedings, or where the record has been thoroughly developed.").
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's December 28, 2008 motion for summary judgment (Doc. No. 20) is granted;
2. Defendant's January 28, 2009 cross-motion for summary judgment (Doc. No. 22) is denied;
3. The decision of the Commissioner of Social Security is reversed; and
4. This case is remanded for further proceedings consistent with this order.