Opinion
Case No.: SACV 16-01551JDE
07-14-2017
WILLIAM L. RAMAGE, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
I.
PROCEEDINGS
Plaintiff filed the Complaint herein on August 3, 2016, seeking review of the Commissioner's denial of her application for disability insurance benefits ("DIB"). (Dkt. No. 1.) The parties filed consents to proceed before the undersigned Magistrate Judge. (Dkt. Nos. 22, 23, 24.) Pursuant to the Court's Case Management Order ("CMO"), the parties filed a Joint Stipulation on June 16, 2017, addressing their respective positions. (Dkt. No. 30, "Jt. Stip.") The Court has taken the Joint Stipulation under submission without oral argument. As set forth in the CMO, this decision is made based on the Administrative Record, the pleadings, and the Joint Stipulation of the parties under Rule 12(c) of the Federal Rules of Civil Procedure applying the standards set forth in 42 U.S.C. § 405(g).
II.
STANDARD OF REVIEW
Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of no less than twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). In assessing disability claims, an Administrative Law Judge ("ALJ") conducts a five-step sequential evaluation to determine at each step if the claimant is or is not disabled. See Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (citing, inter alia, 20 C.F.R. §§ 404.1520(a), 416.920(a)). First, the ALJ considers whether the claimant is currently working in substantial gainful activity. Id. If not, the ALJ proceeds to a second step to determine whether the claimant has a "severe" medically determinable physical or mental impairment or combination of impairments that has lasted for more than twelve months. Id. If so, the ALJ proceeds to a third step to determine whether the claimant's impairments render the claimant disabled because they "meet or equal" any one of the "listed impairments" set forth in the Social Security regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1. See Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1001 (9th Cir. 2015).
If the claimant's impairments do not meet or equal a "listed impairment," before proceeding to the fourth step the ALJ assesses the claimant's residual functional capacity ("RFC"). 20 C.F.R. § 416.920(d), 416.945; Social Security Ruling ("SSR") 96-8p. After determining the claimant's RFC, the ALJ determines at the fourth step whether the claimant has the RFC to perform past relevant work, either as she actually performed it or as it is generally performed in the national economy. 20 C.F.R. § 416.920(f). If the claimant cannot perform her past relevant work, the ALJ proceeds to a fifth and final step to determine whether there is any other work, in light of the claimant's RFC, age, education, and work experience, that the claimant can perform and that exists in "significant numbers" in either the national or regional economies. 20 C.F.R. § 416.920(g); Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can do other work, she is not disabled; but if the claimant cannot do other work and meets the duration requirement, the claimant is disabled. Tackett, 180 F.3d at 1099.
The RFC represents what a claimant can still do despite existing exertional and non-exertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). "Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assess the claimant's residual functional capacity." Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted).
The claimant generally bears the burden at each of steps one through four to show that she is disabled or that she meets the requirements to proceed to the next step, and the claimant bears the ultimate burden to show that she is disabled. See, e.g., Molina, 674 F.3d at 1110; Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). However, at step five, the ALJ has a limited burden of production to identify representative jobs that the claimant can perform that exist in significant numbers in the economy. See 20 C.F.R. §§ 404.1560(c)(1)-(2), 416.960(c)(1)-(2); Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100.
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision denying benefits to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). "Substantial evidence is 'more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted).
Although courts will not substitute their discretion for the Commissioner's, courts nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "Even when the evidence is susceptible to more than one rational interpretation, we must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record." Molina, 674 F.3d at 1110; see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (court will uphold decision when evidence is susceptible to more than one rational interpretation). However, a court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).
Lastly, even when legal error is found, the reviewing court will still uphold the decision if the error was harmless, that is, where it is inconsequential to the ultimate non-disability determination, or where, despite the error, the Commissioner's path "may reasonably be discerned," even if the Commissioner explains her decision "with less than ideal clarity." Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citations omitted).
III.
SUMMARY OF ADMINISTRATIVE PROCEEDING
Plaintiff was born August 3, 1954. (AR 26.) Plaintiff filed an application for disability insurance benefits March 15, 2010. (AR 272-77.) The application was denied on initial review and again on reconsideration, after which Plaintiff requested that her claim be heard before an ALJ. (AR 119-20, 155-60, 161.) An ALJ held a hearing on August 8, 2011, and on October 4, 2011, returned an unfavorable decision. (AR 37-80, 121-138.) On June 19, 2014, the Appeals Council vacated the ALJ's decision and remanded the matter for a new hearing and decision. (AR 143-46.) A remand hearing was held on June 4, 2015. (AR 81-118.) On October 8, 2015, the ALJ again found Plaintiff was not disabled. (AR 12-36.)
The ALJ used the five-step sequential evaluation process to guide the decision. At step one, the ALJ determined that Plaintiff met the insured status requirements through December 31, 2007, and had not engaged in substantial gainful activity since April 24, 2002. (AR 17, 18.) At step two, the ALJ concluded that Plaintiff had the following severe impairments: a history of level 1 anterior cervical spine fusion at C3-4 for a herniated disc in May 2004 with continuing symptomatology; degenerative disc disease with radiculopathy in C6-7 (with stenosis at lower levels); and sensory changes in C8 level, with some evidence of lower cervical spine C7 radiculopathy. (AR 18.)
At step three, the ALJ decided that the impairments did not meet or equal any "listed impairment" (AR 19) and found that through the date last insured Plaintiff retained the RFC to perform light work with the following limitations:
"[L]ifting and/or carrying 10 pounds frequently and 20 pounds occasionally with both hands, no more than 10 pounds with the right hand alone, he is right hand dominant; standing and/or walking up to 6 hours in an 8-hour day, and sitting 6 hours in an
8-hour day; frequent climbing of stairs and ramps, bending, stooping, and kneeling; no work on ladders or at unprotected heights; occasional work at or above shoulder level bilaterally; and occasional gross and fine manipulation and feeling." (AR 20.)
At step four, the ALJ stated that Plaintiff had no past relevant work, had a limited education, and transferable skills was not an issue. (AR 26.)
At step five, based on Plaintiff's age, education, RFC vocational factors, and the VE's testimony, the ALJ found that there were jobs existing in significant numbers in the national economy that Plaintiff could perform, including work as a (1) bakery worker (Dictionary of Occupational Titles ("DOT") 524.687-022); and (2) counter clerk (DOT 249.366-010). (AR 27.) Accordingly, on October 8, 2015 the ALJ determined that Plaintiff was not disabled during the relevant period from the alleged onset date - April 24, 2002 - through the date last insured of December 31, 2007. (AR 35.)
On November 10, 2015, Plaintiff requested that the Appeals Council review the decision by the ALJ. (AR 9-11.) On July 8, 2016, the Appeals Council denied the request for review. (AR 2-8.) This action followed.
IV.
DISPUTED ISSUES
1. Whether the ALJ erred by failing to articulate specific and legitimate reasons for rejecting the neck and over-the-shoulder reaching limitations found by an examining physician in questioning the VE and in assessing Plaintiff's RFC; and// //
2. Whether the ALJ provided clear and convincing reasons to reject the testimony of Plaintiff.
V.
DISCUSSION.
1. The ALJ erred in rejecting the contradicted opinion of an examining physician without sufficient findings.
Plaintiff contends that the ALJ failed to take into account the work restrictions recommended by Dr. Schilling, a consultative medical examiner who evaluated Plaintiff in 2006. (Jt. Stip. at 4; AR 509.) Dr. Schilling recommended certain neck and head limitations in his assessment. (AR 507.) Plaintiff argues the ALJ impermissibly excluded Dr. Schilling's limitations from the RFC. (Jt. Stip. at 5.) Plaintiff alleges that the VE may not have identified the occupations of bakery worker and counter-clerk photo finisher had the ALJ included Dr. Schilling's physical limitations in the hypothetical presented to the VE. (See Jt. Stip. at 6.)
The Commissioner contends that Plaintiff failed to raise the vocational issue at either hearing before the ALJ and, therefore, waived the argument by not properly preserving it for appeal. (Jt. Stip. at 9.) Should the Court find that the issues were not waived, the Commissioner argues that the ALJ reasonably limited her hypothetical questions to the VE to the functional limitations that she found were supported by the record. (Id.; AR 105-08.) The Commissioner points to the VE's assessment, which the ALJ accepted, that an individual with Plaintiff's vocational profile could perform the occupations of bakery worker and counter clerk and that substantial evidence supported these findings. (Jt. Stip. at 9; AR 107-108.) Further, the Commissioner argues that the ALJ properly considered all medical evidence from the record and incorporated the opinions she found were supported by the record. (Jt. Stip. at 10.)
a. Applicable Law
The ALJ's RFC is not a medical determination but an administrative finding or legal decision reserved to the Commissioner based on consideration of all the relevant evidence, including medical evidence, lay witnesses, and subjective symptoms. See SSR 96-5p; 20 C.F.R. § 404.1527(e). In determining a claimant's RFC, an ALJ must consider all relevant evidence in the record, including medical records, lay evidence, and the effects of symptoms, including pain reasonably attributable to the medical condition. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).
In determining RFC, the ALJ is required to consider the combined effect of all the claimant's impairments, mental and physical, exertional and non-exertional, severe and non-severe. 42 U.S.C. §§ 423(d)(2)(B), (5)(B). In weighing medical source opinions in Social Security cases, the Ninth Circuit distinguishes among three types of physicians: (1) treating physicians, who actually treat the claimant; (2) examining physicians, who examine but do not treat the claimant; and (3) non-examining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). "Generally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001). However, "the ALJ need not accept the opinion of any physician . . . if that opinion is brief, conclusory and inadequately supported by clinical findings." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2011). Further, the weight given a physician's opinion depends on whether it is consistent with the record and accompanied by adequate explanation, the nature and extent of the treatment relationship, and the doctor's specialty, among other things. 20 C.F.R. §§ 404.1527(c)(3)-(6), 416.927(c)(3)-(6).
If a treating or examining physician's opinion is uncontradicted, an ALJ may reject it only by offering "clear and convincing reasons that are supported by substantial evidence." Bayliss v. Barhnart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester, 81 F.3d at 830-31). If an "examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence." Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31). "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Trevizo v. Berryhill, 2017 WL 2925434, at *7 (9th Cir. July 10, 2017) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).
b. Analysis.
As an initial matter, the Court will address the Commissioner's contention that Plaintiff failed to preserve his challenge to the vocational limitations for appeal by not raising it during the hearings. The Ninth Circuit has held that "at least when claimants are represented by counsel, they must raise all issues and evidence at their administrative hearings in order to preserve them on appeal." Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999.) Plaintiff cites to the Supreme Court's ruling in Sims v. Apfel, 530 U.S. 103 (2000), to support his contention that claimants in the Social Security context may still bring issues before a reviewing court that were not raised before the Appeals Council. (Jt. Stip. at 13.) The holding in Sims clarified that claimants need not present issues they raised to the ALJ in a request for review to Appeals Council in order to preserve judicial review of those issues. Sims, 530 U.S. at 104-05. However, the Supreme Court specifically noted that it was not deciding "[w]hether a claimant must exhaust issues before the ALJ." Id. at 107. As such, Sims did not disturb Meanel's holding that issues must be raised at some point before the administrative agency. See Harshaw v. Colvin, 616 Fed. Appx. 316, 316 (9th Cir. 2015).
The question for the Court, then, is whether the issue of Dr. Schilling's limitations was sufficiently raised before the ALJ. The Court finds that, although it would have been preferable for the issue to have been raised again more directly during the testimony of the VE, Plaintiff did sufficiently raise the issue of Dr. Schilling's opinion regarding the head, neck and over the shoulder limitations below to preserve it for this appeal. During the administrative hearing held in 2011, Plaintiff's attorney asked the non-examining physician, Dr. Jensen, whether he concurred with certain parts of Dr. Schilling's physical limitation assessment, specifically asking whether Dr. Jensen agreed with the assessment related to no prolonged head posturing and certain limitations in the right upper extremities. (AR 57.) The ALJ subsequently asked a follow-up question of Dr. Jensen based on the exchange related to Dr. Schilling's opinion. (AR 58.) The limitations set forth by Dr. Schilling were also referenced by the ALJ in her 2011 decision. (AR 129.) Therefore, the issue of neck and shoulder limitations was sufficiently raised to preserve the issue for appeal.
While Dr. Jensen expressed agreement with Dr. Schilling's opinion with respect to the limitations relating to how much weight Plaintiff could carry, he did not state whether he agreed with Dr. Schilling's assessment relating to head and neck limitations, including no over the shoulder work. (See AR 57.) --------
Next, the Court turns to the merits of the parties' arguments on the issue. On April 20, 2006, Dr. Schilling performed an examination of Plaintiff and offered an opinion in which he recommended certain work restrictions to avoid exacerbating Plaintiff's condition. (AR 500-09.) Dr. Schilling recommended that "[Plaintiff] should be limited to no repetitive use of the shoulder and use of right upper extremity. He should not lift more than 10 pounds with the right hand. No over shoulder work. No prolonged head posturing. No power grasping right hand. Limited grip, pinch, torque, push, pull or other similar activities with the right hand." (AR 507.) Dr. Jensen, a non-examining physician, appeared by phone in the 2011 hearing and opined that Plaintiff could reach at or above shoulder level occasionally. (AR 53.) In both decisions, the ALJ stated that Plaintiff was capable of performing light work that would allow for "occasional work at or above shoulder bilaterally. (AR 20, 128.)
While the ALJ made little mention of Dr. Schilling in her 2015 decision, she included references to the results of his examination in her 2011 decision, including the over the shoulder limitations. (AR 129, 130.) In her 2011 opinion, the ALJ stated that she gave considerable weight to the opinion of Dr. Schilling because it was consistent with, and supported by, the objective medical evidence while giving significant weight to Dr. Jensen's opinion. (AR 130.) In her 2015 opinion, the ALJ mentioned Dr. Schilling's opinion briefly without explicitly ascribing it weight while describing Dr. Jensen's conclusions at length and according them "great weight." (AR 22.)
The opinion of an examining physician is generally entitled to greater weight than the opinion of a non-examining physician. Lester, 81 F.3d at 830. However, based on the ALJ's decision she has accorded greater weight to the opinion of a non-examining physician, though she does not detail why the opinion of an examining physician was not included in the hypothetical question posed to the VE or, ultimately, in Plaintiff's RFC.
There is a clear difference between the physicians' opinions and the ALJ's RFC demonstrates a preference for Dr. Jensen's opinion over Dr. Schilling's with respect to over the shoulder limitations. Though not explicit, in operation this amounts to the ALJ rejecting the contradicted opinion of an examining physician.
As such, the ALJ was required to provide "specific and legitimate reasons that are supported by substantial evidence" before disregarding Dr. Schilling's opinion. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Bayliss, 427 F.3d at 1216). However, the ALJ offers no reasons in either her 2011 or 2015 decisions for rejecting Dr. Schilling's opinion with respect to Plaintiff's limitations. To the extent that the ALJ relied on Dr. Jensen's opinion to discount Dr. Schilling's, the Ninth Circuit has held that the opinion of a non-examining physician, standing alone, cannot constitute substantial evidence in rejecting the opinion of an examining physician. Widmark v. Barnhart, 454 F.3d 1063, 106-67 n.2 (9th Cir. 2006) ("the opinion of a non-examining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician") (citing Lester, 81 F.3d at 831).
The Commissioner lodges two arguments to support her position that, in the event the ALJ did err in failing to include certain neck and head limitations, any error was harmless in that Plaintiff has not cited anything in the representative occupations identified by the ALJ that indicates that they required prolonged head posturing. (Jt. Stip. at 11.) Further, the Commissioner contends that even if the ALJ had included neck and head limitations in the RFC, Plaintiff could still perform the occupations identified by the ALJ. (Id.)
The Court does not find this error to be harmless as the VE was not presented with a hypothetical that included Dr. Schilling's assessment that Plaintiff maintained serious limitations of the neck and shoulders, including no over the shoulder work. See e.g. Fortunel v. Comm'r of Soc. Sec., 2016 WL 3880718, at * 8 (E.D. Cal. July 18, 2016) ("The ALJ's errors in mischaracterizing portions of [physicians'] opinions and in failing to account for or properly discount their opinions that plaintiff could not do any overhead reaching activities with her left arm were not harmless.") As these limitations could reasonably affect the VE's conclusions related to available occupations in the national economy, on remand, the ALJ must reassess the opinion of Dr. Schilling in accordance with the applicable legal standards accorded to the opinions of examining physicians. See DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991) ("If the hypothetical does not reflect all of claimant's limitations, we have held that the [vocational] expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy . . .")
2. The Court declines to reach Plaintiff's claim that the ALJ erred by failing to provide clear and convincing reasons for discounting Plaintiff's testimony regarding his subjective symptoms.
Plaintiff also argues that the ALJ erred in failing to provide clear and convincing reasons for discounting Plaintiff's subjective symptom testimony. (Jt. Stip. at 14-18.) The Court declines to reach this issue because it finds the ALJ erred as set forth in Section V(1), above, and will remand the case for further proceedings on that issue as discussed further in Section VI, below. Because it is unclear whether the ALJ whether and to what extent the ALJ's apparent rejection of Dr. Schilling's opinion regarding the head/neck and over the shoulder limitations may have played a role in the ALJ's credibility determination of Plaintiff's subjective symptoms, the matter will also be remanded on the issue of Plaintiff's subjective symptom credibility consistent with this opinion.
VI.
REMAND IS WARRANTED
The decision whether to remand for further proceedings is within this Court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 (noting that "the decision of whether to remand for further proceedings turns upon the likely utility of such proceedings"); Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004).
Remand is appropriate where outstanding issues must be resolved before a determination of disability can be made and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated. Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003); see also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) (explaining that courts have "flexibility to remand for further proceedings when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act."). Remand is appropriate where, as here, the ALJ finds a physician's opinion credible, but then fails to include or address material aspects of that opinion in the RFC determination. See Bagby v. Comm'r of Soc. Sec., 606 Fed. Appx. 888, 890 (9th Cir. 2015) (finding reversible error in the ALJ's failure to include a claimant's limitations in assessing an RFC).
Here, remand is appropriate for further consideration and explanation from the ALJ, and, as appropriate, further development of the record consistent with this Order.
V.
CONCLUSION AND ORDER
For the reasons stated above, IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: July 14, 2017
/s/_________
JOHN D. EARLY
United States Magistrate Judge