Opinion
Civil No. 04cv2247 W (AJB).
January 25, 2006
Report and Recommendation re Cross-Motions for Summary Judgment [Doc. No. 14 and 20]
Plaintiff, Tieng Thi Tran, proceeding by and through counsel, has filed this action pursuant to § 1631 (c)(3) of the Social Security Act, 42 U.S.C. § 1383 (c)(3), to obtain judicial review of the final decision by the Defendant, the Commissioner of Social Security, denying the Plaintiff's claim for Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et. seq. and U.S.C. § 401 et. seq. Plaintiff moves for judgment reversing the Commissioner's decision. Defendant opposes Plaintiff's motion and has filed a cross-motion for summary judgment. Plaintiff has filed a Reply. This motion is appropriate for submission on the papers and without oral argument pursuant to Local Rule 7.1 (d)(1). For the reasons set forth herein, it is recommended that Plaintiff's motion be GRANTED, that Defendant's motion be DENIED, and that the case be REMANDED to the Social Security Administration to determine the appropriate award of disability income benefits.
I. Background
A. PlaintiffPlaintiff was born on October 14, 1943 in Vietnam. [Certified Transcript of Record ("Tr."), 101]. Plaintiff was educated through the twelfth grade in Vietnam and worked as a teacher's assistant in her native country from 1964 until 1975, when South Vietnam fell to the Viet Cong, the Communist government confiscated Plaintiff's property, jailed her husband, and forced her to quit her job as a teaching assistant to do work in Communist collective farms called "new economic zones." [Tr. 253, 310]. In August 1995, Plaintiff was admitted as a refugee into the United States. [Tr. 97]. Plaintiff does not speak English and has been a house wife since her arrival in the U.S. [Tr. 310].
B. Procedural History
On December 8, 1994, Plaintiff filed an application for Supplemental Security Income (SSI) benefits based on alleged disability pursuant to Title XVI of the Social Security Act stating that she had been disabled since September 1, 1990 due to arthritis, heart disease, headaches and memory problems. [Tr. 107]. Plaintiff's application was denied both initially [Tr. 107] and on reconsideration. [Tr. 124]. On August 24, 1995, Plaintiff requested that an administrative law judge (ALJ) hear her case, this time citing her disabling condition as insomnia, chronic headaches, osteoarthritis, heart disease, frequent faintness, muscle spasm, stomachache, uncontrollable bladder, low blood pressure, memory loss and allergy. [Tr. 131-32]. On June 12, 1997, an ALJ hearing with Judge Albert Tom was held. [Tr. 52]. On August 19, 1997, the ALJ issued a decision denying Plaintiff's SSI application. [Tr. 21-45]. Plaintiff filed a request for Appeals Council review and on February 5, 1999, the ALJ's decision was affirmed making the Commissioner's decision final for purposes of judicial review, pursuant to 42 U.S.C. § 405 (g). [Tr. 13-14].
Plaintiff filed a Complaint for Reversal of Defendant Commissioner's Final Decision on September 13, 1999, sub nom Tran v. Apfel, 99CV1950-K [Def. Cross Mot. for Sum. Jud., July 27 2005, Case No. 04CV2247, p. 1]. Plaintiff's complaint was dismissed as untimely and a subsequent appeal to the Court of Appeals for the Ninth Circuit was dismissed for failure to file an opening brief or otherwise comply with appellate rules. [Def. Cross Mot. for Sum. Jud., (citing Tran v. Apfel, March 30, 2001, Case No. 00-56666), p. 1].
Prior to filing the Complaint for Reversal of Defendant's Final Decision, Plaintiff joined a class action suit alleging that the ALJ was biased. See Dut Le et al. v. Apfel. 98CV1896-L ( Dut Lee Class Action) [Tr. 12]. On November 18, 2002, the Court issued a final order approving settlement of the Dut Class Action pursuant to Fed.R.Civ.P 23 (e) and remanded the class claims to the Commissioner pursuant to 42 U.S.C. § 405 (g) for further administrative proceedings as set forth in the settlement agreement. [Def. Cross Mot. for Sum. Jud., p. 1]. Pursuant to the settlement agreement, class members whose request for judicial review of their claims was dismissed as untimely were sent a notice offering them the opportunity to request review by the Appeals Counsel of the ALJ's decision or dismissal. [Def. Cross Mot. for Sum. Jud., p. 1]. Plaintiff requested such review of the ALJ's August 19, 1997 decision. [Tr. 9]. The Appeals Council denied Plaintiff's request on October 18, 2004.
During the course of the class action lawsuit, Plaintiff filed a second application for SSI on March 24, 2000, and was found to be disabled since the March 24, 2000 date. [Tr. 5]. However, the Appeals Council found that this information did not affect the ALJ's previous August 19, 1997, denial of SSI benefits for the period November 14, 1994 to March 24, 2000. [Tr. 5].
Plaintiff's complaint, filed November 9, 2004, commenced the instant action for judicial review of the ALJ's decision denying benefits for the period November 14, 1994 to March 24, 2000. [Pla. Compl. for Rev. of Comm. Fin. Dec., November 9, 2004, Case No. 04CV2247]. On or about June 22, 2005, Plaintiff filed the instant Motion for Judgment Reversing the Commissioner's Order pursuant to Fed. Rule Civ. Pro. 56 on the grounds that: 1) Defendant's failure to fully develop the record violated Plaintiff's Due Process rights; 2) Defendant's decision was not supported by substantial evidence, particularly with regard to Defendant's decision to disregard testimony from Plaintiff's treating physicians; 3) Defendant erred as a matter of law in failing to provide reasons for disregarding the opinions of the Plaintiff's treating physicians. [Pla. Mot. for Jud. Rev. Comm. Ord., June 22, 2005, Case No. 04 CV 2247-W, p. 1-2]. Plaintiff seeks relief in the form of a judgment finding that 1) Plaintiff has been disabled from the time of her initial application on November 14, 1994 through March 24, 2000, and 2) that retroactive SSI benefits be awarded for this period.
On July 27, 2005, Defendant filed a Notice of Cross-Motion and a Cross Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Judgment Reversing the Commissioner's Order setting forth the following arguments: 1) The ALJ's decision was supported by substantial evidence; 2) The ALJ properly evaluated the medical evidence; 3) The ALJ properly evaluated Plaintiff's Credibility; 4) The ALJ properly Assessed Plaintiff's Residual Functional Capacity; and 5) There is no evidence of bias or impropriety. [Def. Cross Mot. for Sum. Jud.].
II. Summary of Medical Evidence
A. Plaintiff's Physicians
1. Physical Ailments
Dr. Ngoc Minh Pham, M.D.
On March 30, 1993, Dr. Pham began treating Plaintiff for arthritis, low back pain, and numbness in the hands. [Tr. 181-204]. On the following four separate occasions, Dr. Pham reported to the County of San Diego Department of Social Services that Plaintiff was unemployable based on Dr. Pham's medical findings: September 13, 1993; November 5, 1993; January 4, 1994; and July 5, 1994. [Tr. 191, 194, 197, 202].
Dr. Long T. Vu, M.D.
On July 22, 1994, Plaintiff began seeing Dr. Long T. Vu, M.D. for low back pain, left hip pain, pain in the shoulders and hands, and numbness in the hands. [Tr. 213]. Dr. Vu recommended that Plaintiff wear splits on her wrists in order to alleviate the pain in her hands. [Tr. 213]. Dr. Vu referred Plaintiff to Dr. James Grisolia, M.D. for neurological treatment. [Tr. 134, 207]. On October 7, 1994, and April 1, 1995, Dr. Vu reported to the County of San Diego Department of Social Services that Plaintiff was unemployable based on Dr. Vu's medical findings. [Tr. 204, 209].
Dr. James Grisolia, M.D.
On or about October 14, 1994, Dr. Grisolia examined Plaintiff. Dr. Grisolia noted that muscle strength testing showed only give-way weakness due to pain in the hands, that sensation was intact to touch throughout with some dysesthesias in the second and third digits bilaterally, and that the Tinel's sign was positive for radiation in the third digit with tapping of the wrist bilaterally. [Tr. 216]. Dr. Grisolia confirmed that Plaintiff suffered from bilateral carpel tunnel and diffuse arthritic complaints and endorsed Dr. Vu's suggestion of conservative treatment with wrist splits. [Tr. 217, 218]. Dr. Grisolia further advised Dr. Vu to consult with Plaintiff about surgery if the splint treatment proved ineffective. Id.
Also on October 14, 1994, Dr. Grisolia performed an electromyogram, which confirmed the existence of Plaintiff's carpal tunnel syndrome (CTS) with evidence of abnormal and demonstrated bilateral median neuropathy at the wrists without denervation as is consistent with CTS. [Tr. 220; Tr. 27]. Plaintiff was provided with removable splints. [Tr. 84]. Dr. Grisolia again conducted an electromyogram on December 24, 1997, which again confirmed the presence of CTS and indicated that Plaintiff's conditioned had worsened since the last electromyogram on October 14, 1999. [Tr. 328].
Dr. Jacob R. Morgan, M.D.
Between December 28, 1995 and January 5, 1996, Plaintiff was treated by Dr. Morgan, a cardiologist, on three separate occasions and was diagnosed with hypertensive cardiovascular disease and hypercholesterolemia. [Tr. 223]. In a summary dated May 1996, Dr. Morgan noted that Plaintiff was taking and was later prescribed Promethazine with codeine (cough), Atenolol 50 (anti-hypertensive) and Amoxicillin 250 (bacterial infection). [Tr. 27, 223].
An excess of cholesterol in the blood.
On June 4, 1997, Dr. Morgan wrote a letter to the Office of Hearings and Appeals indicating that based on his examination and on a review of the patient's medical history, he found the Plaintiff to be precluded from employment due to her CTS and osteoarthritis. [Tr. 290]. He further opined that Plaintiff should avoid unprotected heights, machinery, fumes and gasses, and found that she could sit for two hours, but could not stand or walk for any time exceeding one hour. [Tr. 290]. Dr. Morgan further cited Plaintiff's severe mental problems and depression as precluding Plaintiff's ability to work. [Tr. 290]. In his reports, Dr. Morgan noted that Plaintiff suffered severe concentration deficiencies and inability to follow directions. [Tr. 290]. Dr. Morgan stated that Plaintiff urgently needed counseling for an extended period of time and opined that her chest pain was symptomatic of her severe mental illness. [Tr. 290].
Dr. K.C. Hung, M.D.
Between December 6, 1995 and January 11, 1996, Dr. Hung treated Plaintiff on two occasions and diagnosed her with back pain, cough, hypertension and hyperlipidemia. [Tr. 237].
An elevation of lipids in the bloodstream including cholesterol.
Dr. Geoffrey Smith, M.D.
On January 26, 1996, Dr. Smith examined Plaintiff for her respiratory complaints and determined that there was no obstructive mass in Plaintiff's neck. [Tr. 315]. His impression was that Plaintiff had hemoptysis and apparent depression. [Tr. 316].
Coughing up of blood from the respiratory tract.
Dr. N.E. Sidrick, M.D.
Dr. Sidrick submitted clinic notes from June and September of 1996, and May 1997. [Tr. 274-87]. Dr. Sidrick treated Plaintiff at the La Maestra Family Clinic and the La Mesa Community Health Clinic. [Tr. 274-284; 31]. These notes indicated treatment for degenerative joint disease and/or arthritis, leg cramps, hypertension, eczema and CTS. [Tr. 277-78, 282-85]. Dr. Sidrick stated that Plaintiff had weakness, numbness, reduced muscle mass and grasp and chronic pain in her hands. [Tr. 319]. Dr. Sidrick noted that Plaintiff had used splints and medications without success and opined that due to Plaintiff's age, it was doubtful that surgery to correct her CTS would be effective. [Tr. 313].
Dr. Sidrick submitted a letter to the ALJ, dated June 12, 1997, stating that Plaintiff dropped objects, could not lift or carry over ten pounds and could not perform repetitive movement. [Tr. 319]. Dr. Sidrik opined that Plaintiff was unable to work as a hand packager, assembler, or laundry worker due to her CTS, which left her unable to perform repetitive movements because of pain, reduced grasp and numbness in her finger tips. [Tr. 319].
Dr. John Gaidry, M.D.
Dr. Gaidry, an employee of the Alvarado Pain and Rehabilitation Center, specializing in pain and rehabilitation, submitted a report on June 10, 1997 to Dr. Sidrick upon reviewing reports by Drs. Cherlin, Morgan, and Grisolia. [Tr. 27, 310-13, 311]. The record indicates that Plaintiff was examined by Dr. Gaidry on May 15, 1997; May 22, 1997; May 29, 1997; June 5, 1997. [Tr. 311-12]. Dr. Gaidry's June 5, 1997 physical examination revealed intermittent coughing, slight lumboscaral tenderness and indications of CTS. [Tr. 312]. Inter alia, he diagnosed bilateral CTS, arthritis, lumbar spondylosis, chronic bronchitis, gastrointestinal problems, and urinary incontinence. [Tr. 312]. Doubting that surgery would be effective, Dr. Gaidry opined that there was irreversible nerve damage and permanent disability due to CTS and that Plaintiff was not a suitable candidate for work. [Tr. 313]. Dr. Gaidry also opined that Plaintiff suffered from moderate to severe major depressive disorder, from post-traumatic stress syndrome and that her mental condition would not allow for the appropriate integration of ideas or work instructions necessary to participate in a work environment. [Tr. 313].
Osteoarthritis of the lumbar spine.
In his June 10, 1997 report, Dr. Gaidry noted that Plaintiff was taking the following medications: Atenolol (high blood pressure, Creon (asthma), Prozac (depression), Tagamet (gastric problems), Tolectin (arthritic problems), Antitussives (cough), Tylenol with codeine (for pain), Quinine sufale, one twice a day (muscle cramps/spasm), Chlorophenamine maleate (allergic symptoms), Triamcinolone cream (allergic skin problems). [Tr. 311].
An August 7, 1997 report from the Alvarado Orthopedic Medical Group states that Plaintiff had a history of chest pain, atrial ectopic beats, chronic obstructive pulmonary disease, lumbosacral stenosis with disherniation and facet anthropathy. [Tr. 320]. The report indicates that her medications as of that date were: Trazodone (150 mg q.h.s), Premarin (.625 mg qd.), Provera (2.5 mg qd.), Haldol, Diphenhydramine, Albuterol, Prednisone cream, Depakote (125 mg qd.). Plaintiff was found to suffer from lumbosacral neuroformainal impingement with stenosis, post traumatic war syndrome, diffuse arthralgias, diffuse myositis, history of acute and chronic mastoiditis requiring surgical intervention in the left ear, chest pain with atrial ectopic beats and chronic obstructive pulmonary disease. [Tr. 320]. The report included a CT of the lumbar spine indicating neuroforaminal impingement, secondary bony stenosis and mild disc herniation and L4-L5 mild facet arthropathy. [Tr. 320].
Contraction of the upper heart chamber which occurs before it would be expected.
A group of lung diseases involving limited airflow and varying degrees of air sac enlargement.
Degeneration of the last lower back joint, found just in front of the pelvis.
Pain and discomfort caused by degeneration and arthritis of the facet joints.
Presence of painful joints in the absence of frank arthritis.
Inflammation of the muscles.
An infection of the mastoid process, the portion of the temporal bone of the skull that is behind the ear.
Segmented part of the spine through which nerves exit.
In a October 16, 1997 letter to Dr. Sidrick, Dr. Gaidry reported that Plaintiff suffered from increasing joint pain and that a March 1997 blood test indicated elevated sedimentation rate of 31 H (Normal rate 0-20) indicating active inflammatory arthritis. [Tr. 321]. He noted that this elevated sedimentation rate had been noted earlier by Dr. Hung in December 6, 1995 report. [Tr. 321]. He reported that Plaintiff exhibited exquisite and diffuse tenderness in the joints and especially in the hands with significant restriction of function of the affected joints that Plaintiff's prognosis was expected to decline. [Tr. 321].
Dr. Gaidry reported that he had imposed strict functional limitations on Plaintiff directing her not to carry or lift any object over one pound, to refrain from bending, crawling or squatting. Dr. Gaidry stated that Plaintiff could sit for three hours in an eight hour work day, with a ten minute break every hour, and that she could not grasp any objects or perform repetitive movements with her hands because of her inflammatory arthritis and her CTS. [Tr. 321].
2. Psychiatric Ailments
Dr. Robert N. Slotkin, M.D.
On July 15, 1995, Dr. Slotkin reported his clinical findings regarding Plaintiff to the State of California Health and Welfare Agency, finding Plaintiff to be oriented in time, place and person, with no evidence of any psychotic thinking. He found Plaintiff to suffer from major affective disorder depression and stated that she felt that she was unable to function satisfactorily in an occupational setting. [Tr. 253]. Dr. Slotkin said that Plaintiff was clearly depressed and indicated signs of Post Traumatic Stress Disorder ("PTSD"). [Tr. 252]. Dr. Slotkin indicated that Plaintiff had been treated with Desyrel and noted that although her dosage had reached 450 m.g. at one point, that treatment had not led to any substantial improvement. [Tr. 252-53].
Dr. Edward Cherlin, M.D.
On May 24, 1997, Dr. Cherlin wrote a letter to the Department of Social Services stating that he has been treating Plaintiff since November 13, 1995, on a regular basis, with appointments every few months, with her last visit falling on March 31, 1997. [Tr. 333; 269; 268]. Dr. Cherlin stated that Plaintiff's medications included a daily regimen of 50 m.g. of Atenolol for hypertension, 10 one b.i.d of Creon for asthmatic problems, 40 m.g. of Prozac for depression, 400 m.g. of Tagament for gastrointestinal problems, 800 m.g. of Tolmectin for arthritic problems, and cough syrup. [Tr. 269]. It is also noted in the record that Dr. Cherlin prescribed Evavil to Plaintiff. [Tr. 27].
Dr. Cherlin diagnosed Plaintiff as suffering from moderate to severe major depression that was recurrent, passive-dependent personality, osteoarthritis, hypertension, chronic upper respiratory problems with chronic cough and intermittent gastritis. [Tr. 269]. Dr. Cherlin diagnosed Plaintiff with extreme stress from war experiences and further diagnosed that she suffered psychosocial stressors. [Tr. 269]. He stated that her current Global Assessment of Functioning (GAF) was 50 to 55 and had been so for the past several months. [Tr. 269]. Dr. Cherlin opined that Plaintiff was unable to function in a work environment. [Tr. 270].
The Global Assessment of Functioning, or GAF scale, is a numeric scale (0 through 100) used by mental health clinicians and doctors to rate the social, occupational and psychological functioning of adults.
During his testimony at the June 12, 1997 administrative hearing, Dr. Cherlin stated that he was generally aware of Plaintiff's physical problems and that he used a translator in his sessions with Plaintiff. [Tr. 59]. Although he did not believe that Plaintiff could recover within 12 months, he expressed his opinion that Plaintiff's condition was amendable to treatment and indicated that he had also prescribed Aludiomyl to treat Plaintiff's depression. [Tr. 60-61]. He endorsed his earlier assessment that Plaintiff was unable to work. [Tr. 62]. He also testified that he treated Plaintiff's husband. [Tr. 80].
On November 8, 1998, Dr. Cherlin wrote a letter to the Department of Social Services. [Tr. 333]. He stated that he last saw Plaintiff on October 16, 1998. [Tr. 333]. Dr. Cherlin stated that Plaintiff's current medications included: 15 m.g. of Remeron for depression and as a sleeping aide and 20 m.g. of Prozac. [Tr. 268]. He noted that her general interest in things remained poor, that she complained of continued depression, lack of energy and felt weak. [Tr. 333]. He noted that she had been wearing hand splints for a number of months and that he had noticed this on her prior visits. [Tr. 333].
Based on Dr. Cherlin's examinations with Plaintiff he found no signs of psychosis or loose associations. [Tr. 334]. However, he noted that Plaintiff was forgetful, often unintentionally leaving food on the stove and burning it. Dr. Cherlin found that Plaintiff continued to suffer from the following ailments: major depressive disorder that was recurrent and severe, passive dependent personality, osteoarthritis, hypertension, chronic upper respiratory problems, with persistent productive cough, intermittent gastritis, weakness of both hands, possible CTS, and psychological stressors from war experiences that were severe to extreme. [Tr. 333].
Dr. Glen Garman, Ph.D.
Plaintiff was referred to Dr. Garman by Dr. Morgan for the purposes of evaluating Plaintiff's mental status and level of cognitive functioning. [Tr. 271]. On May 25, 1997, Dr. Garman submitted a psychological examination reporting his findings based on his May 20, 1997 examination of Plaintiff. [Tr. 271]. Dr. Garman noted that Plaintiff's memory was very poor and that she could not give details or dates of past events. [Tr. 271]. Plaintiff came to Dr. Garman complaining of sleep disturbance and insomnia, headaches and memory loss. Dr. Garman reported that Plaintiff had caused a fire in her home after forgetting about food that she was cooking on the stove. [Tr. 271]. Finally, Plaintiff told Dr. Garman that "she [did] not want to live, walk[ed] carelessly across the street without looking, and [was] prevented from taking an overdose of meds by her children . . ." [Tr. 271].
Dr. Garman diagnosed Plaintiff with dementia, recurrent major depression and PTSD. [Tr. 273]. His findings were based in part in his administering various tests. On the Wechsler Adult Intelligence Scale Digit Span Scale Plaintiff had a pro-rated verbal score of 54, a pro-rated performance score of 57, and a pro-rated full scale score of 49, placing her in the Moderately Mentally Retarded range of cognitive functioning. [Tr. 272].
For the Wechsler Memory-Revised Test, Plaintiff scored less than 50 on the Attention/Concentration portion, and less than 50 on the visual Memory portion, with both results the lowest range. She could not repeat 3 auditory digits forward, or 2 backwards, could not remember simple designs for the amount of time it took to turn from one page to another. [Tr. 272]. For the Raven Test, which measured non-verbal reasoning ability, Plaintiff scored below the lowest 5% of 10 years olds. On the Bender Gestalt Test, Plaintiff executed a design in a crude fashion indicating signs of brain dysfunction.
As a result of such testing, Dr. Garman opined that Plaintiff could not function in an employment situation or manage her own funds as she could not understand, remember, and carry-out even simple instructions. [Tr. 273].
B. Social Security Physicians
Dr. Arnold Yalam, M.D.
1. Physical Ailments
On February 22, 1995, consulting internist Dr. Yalam examined Plaintiff. [Tr. 239-40]. Dr. Yalam found that the musculoskeletal examination was unremarkable and that patient ambulated without assistance. [Tr. 240]. Dr. Yalam's musculoskeletal exam revealed no signs of redness, swelling, or warmth of any joint and that the range of all joints was normal. [Tr. 240]. Dr. Yalam affirmed the existence of bilateral CTS and noted that Plaintiff walked with a limp. [Tr. 240].
Dr. Gary Trunk M.D.
On March 29, 1995, Dr. Trunk reviewed the evidence pertaining to Plaintiff's alleged physical impairments and found evidence indicating mild arthritis and CTS. [Tr. 112]. He opined that Plaintiff had the residual functional capacity ("RFC") to lift and carry fifty pounds occasionally and twenty-five pounds frequently, to sit, stand and walk for about six hours in an eight hour work day [Tr. 115-16, 120, 130]. He concluded that she could use her hands/wrists frequently, avoiding continuous or repetitive power and strenuous gripping, grasping, and squeezing and that she could do simple gripping and pinching. [Tr. 117]. Dr. Trunk advised that she should avoid concentrated exposure to extreme cold, vibration, and hazards. [Tr. 118]. Dr. Trunk commented that there were not definite findings indicating marked functional impairment of Plaintiff's hands. [Tr. 120].
Dr. G.L. Hody M.D.
On July 26, 1995 Dr. Hody reviewed the all evidence available in file as of the July 26, 1995 date and wrote a report affirming Dr. Trunk's "RFC". [Tr. 130].
Dr. Robert Schillaci, M.D.
Dr. Schillaci testified at the June 12, 1997 administrative hearing after reviewing the exhibit file. [Tr. 82]. At that time, Dr. Schillaci was board-certified in internal medicine and pulmonary disease. [Tr. 28]. He stated that there was evidence of CTS and possible hypertension. [Tr. 82-85]. He noted that while there was no specific study done to evaluate degenerative arthritis, that the nature of Plaintiff's complaints would probably suggest mild degenerative joint disease. [Tr. 85].
Dr. Schillaci attributed Plaintiff's breathing problems to stuffy nose and allergies. [Tr. 86]. Dr. Schillaci dismissed Plaintiff's claims of disability due to cardiovascular condition and attributed such complaints to musculoskeletal problems rather than to anything related to exertion. [Tr. 29]. He testified that Plaintiff's CTS was very mild based on the objective evidence and opined that Plaintiff could lift up to 25 pounds frequently and 50 pounds occasionally, that there was no indication of any limitation on her ability to sit, stand or walk, and that she could be restricted from continuous, rapid, repetitive or forceful twisting activities with both upper extremities. [Tr. 87].
2. Psychiatric Ailments
Dr. Reynaldo Abejuela, M.D.
Dr. Abejuela examined Plaintiff on March 22, 1995. [Tr. 241]. In his report, Dr. Abejuela indicated that Dr. Vu's medical report was available but that no psychiatric records were available for Dr. Abejuela's review at that time. [Tr. 241]. His mental status examination ("MSE") revealed mildly depressed mood, with no evidence of hallucinations, and intact short and long term memory. [Tr. 243]. He found no evidence of severe depression or anxiety and no evidence of PTSD. [Tr. 244].
He noted in his report that Plaintiff complained of worsening depression and memory problems, and complained that she slept only one to three hours a night with recurring nightmares. [Tr. 242]. She reported forgetfulness, problems concentrating and feelings of helplessness. [Tr. 242].
In his report, Dr. Abejuela stated that Plaintiff was logical and coherent with no loosening of association noted and no tangentiality or circumstantiality. [Tr. 243]. He stated that Plaintiff did not appear to be apathetic or withdrawn, that her reasoning and comprehension were unimpaired and that there was no evidence of a psychotic disorder or a cognitive disorder. He opined that Plaintiff's personal, social, and occupational functioning was unimpaired from a psychiatric perspective at that time. [Tr. 245].
Dr. H.N. Hurwitz M.D.
On March 29, 1995, after reviewing all available evidence in file, which included Dr. Abejuela's report, Dr. Hurwitz opined that Plaintiff's alleged mental impairment was not severe. [Tr. 121]. He also noted that Dr. Slotkin was an "unreliable source" without further explanation. [Tr. 121].
Dr. David E. Gross, M.D.
On July 25, 1995, after reviewing all available evidence in file as of the July 25, 1995 date, Dr. Gross wrote a report affirming Dr. Hurwitz's assessment. [Tr. 129]. Dr. Gross noted that Plaintiff had, "no history of treatment except w[ith] well-known unreliable source . . ." referring to Dr. Slotkin. [Tr. 129].
Dr. Dan Dwyer M.D.
Dr. Dwyer examined Plaintiff on July 15, 1995. [Tr. 247]. Dr. Dwyer reported that Plaintiff did not voluntarily elaborate on signs and symptoms of depression, but did elaborate on PTSD symptoms. [Tr. 246-47, 249]. Dr. Dwyer stated that Plaintiff did not endorse psychotic symptoms. [Tr. 247]. She alleged an inability to recall both her history of employment and the history of her illnesses with the exception of her arthritis, and her daily activities. [Tr. 247-48].
Dr. Dwyer stated that Plaintiff's memory appeared to be impaired, but noted that there was contradictory evidence in the course of the interview because when Dr. Dwyer asked Plaintiff whether she had undergone surgery, she was able to respond, "no", without much delay. [Tr. 247]. This troubled Dr. Dwyer who then asked Plaintiff how she could be certain if she could not recall events prior to the war. [Tr. 247]. Dr. Dwyer reported that Plaintiff then became slightly frustrated and began to increase her communication efforts. [Tr. 248].
While Dr. Dwyer found no evidence of severe depression or anxiety, he diagnosed Plaintiff with Chronic PTSD in partial remission, but stated that there was no clear reason why this would prevent her from functioning vocationally. [Tr. 250; Def. p. 4]. However, Dr. Dwyer concluded that it would behoove Plaintiff to get involved with intensive psychiatric rehabilitation. [Tr. 251].
III. The ALJ's Decision
The Social Security Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical and mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). The plaintiff has the burden of establishing a prima facie case for disability. See Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If a claimant is able to demonstrate an inability to return to past work due to medical disability, the burden then shifts to the Commissioner to show that the claimant can perform another form of substantial gainful work, considering age, education and work experience. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
In his decision, issued on August 19, 1997, the ALJ engaged in the five step sequential evaluation process for evaluating disability claims as set forth in 20 C.F.R. § 404.1520 (a), 416.920. First, if the ALJ finds that the claimant is currently working and engaged in substantial gainful employment, then she is not disabled under the regulations. See 20 C.F.R. § 404.1520(b). The ALJ found that Plaintiff had not engaged in substantial gainful activity since November 14, 1994. [Tr. 39-40].
Second, the ALJ must determine whether the claimant suffers from a severe impairment, or combination of impairments, that would render her disabled. 20 C.F.R. § 404.1520(c). The ALJ found that Plaintiff was not severely disabled. At the third step, the ALJ determines whether the claimant suffers from an impairment that meets or equals the criteria of severity set forth in Appendix 1 to Part 404 of the regulation implementing Title II. § 416.1520(d). At step three, "the medical evidence of the claimant's impairment is compared to a list of impairments presumed severe enough to preclude gainful work." Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). "If the claimant meets or equals one of the listed impairments, a conclusive presumption of disability applies." Id. In the second and third step, the ALJ found that:
The medical evidence establishes that Plaintiff has severe probable dysthymic versus major depressive disorder; possible post-traumatic stress disorder; headaches resolved by nasal surgery; very mild hypertension that has been controlled and is treated; probable mild degenerative joint disease, without any significant objective findings; very mild carpal tunnel syndrome, but that she does not have an impairment or combination of impairments listed in or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. [Tr. 40].
If the presumption does not apply, the ALJ proceeds to step four and determines the claimant's residual functional capacity, which is defined as what an individual can still do in a work setting despite limitations caused by medically determinable impairments. 20 C.F.R. § 404.1520(e). The ALJ found that Plaintiff had the residual functional capacity to perform the physical exertion and nonexertional requirement of work with the exception of work that involved more than simple and repetitive tasks, or work that required any public contact more than minimal coworker and supervisor contact, and any work requiring English communication ability. [Tr. 40]. If past work cannot be performed, then under step five, the ALJ must determine if there is any other substantial work the plaintiff can perform. See id. at § 416.920(f). If the claimant cannot perform either, benefits are generally awarded. See Marcia, 900 F.2d at 174. In the final step, the ALJ found that there were a significant number of jobs in the national economy that Plaintiff could perform including assembler, laundry worker and packager. [Tr. 40].
IV. Discussion
A. Judicial Review
Pursuant to 42 U.S.C. § 405 (b)(1), the Commissioner's final determination is reviewed by the Court to see if it is supported by substantial evidence, and to see that it is free of legal error. The Commissioner is directed to make findings of fact, and decisions as to the rights of any individual applying for disability benefits. 42 U.S.C. § 405 (b)(1). The Commissioner must support his or her determination with substantial evidence that must reside in the record as a whole. Gavin v. Heckler, 911 F.2d 1195, 1199 (8th Cir. 1987); See 42 U.S.C. § 405(g). 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. Sandgathe v. Chater, 108 F.3d 980, 980 (9th Cir. 1996). The possibility that two inconsistent conclusions could be drawn from the evidence does not prevent any particular finding from being supported by substantial evidence. See, e.g. N.R.L.B. v. Columbian Enameling Stamping Co., 306 U.S. 292, 299-300 (1939).
The substantial evidence standard presupposes that there is a "zone of choice within which the Secretary may proceed without interference from the courts." Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Where the evidence is susceptible to more than one rational interpretation, the Court must uphold the Commissioner's decision. Id. In determining whether the Commissioner's findings are supported by substantial evidence, we must consider the evidence as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. John v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In its review, the court "may not decide the facts anew, reweigh the evidence, or substitute [its] own judgement for that of the Secretary." Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986). At the same time, the review "must be more than an uncritical rubber stamp." Id. at 82. Plaintiff bears the burden of establishing that the ALJ's decision was not based on substantial evidence or that it was based on legal error. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
1. The ALJ's Decision Rejecting Plaintiff's Allegations of Degree of Pain and Limitation Are Not Supported by Substantial Evidence.
The ALJ's credibility assessment of a plaintiff's testimony impacts the weight given to a treating physician's diagnosis. When an ALJ properly discounts plaintiff's subjective complaints, the ALJ may properly disregard the opinion of a treating physician that is premised on those subjective complaints. See Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989). Questions regarding the credibility of a witness' testimony are addressed to the ALJ. Russell v. Bowen, 856 F.2d 81, 83 (9th Cir. 1988). If the ALJ finds that the claimant's testimony is unreliable, the ALJ must set forth a basis for this determination that is specific enough to permit the reviewing court to conclude that the ALJ did not render the decision arbitrarily. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) ( en banc).
The ALJ may consider at the least the following factors when weighing the claimant's credibility: "reputation for truthfulness, inconsistencies either in testimony or between testimony and conduct, daily activities, work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which [claimant] complains." Bunnell v. Sullivan, 947 F.2d at 341, quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). If the ALJ's credibility finding is supported by substantial evidence in the record, the Court may not engage in second-guessing. See Morgan v. Comm., 169 F.3d 595, 600 (9th Cir. 1999). The ALJ called Plaintiff's credibility into doubt citing Plaintiff's November 14, 1994 application for SSI where Plaintiff indicated by checking a box, that she was a United States citizen by birth and that she had never lived outside of the United States. [Tr. 33;102]. The ALJ used this single instance to justify calling into doubt Plaintiff's integrity and credibility with regard to other allegations in the record, including the extent and severity of Plaintiff's alleged impairments and limits. [Tr. 33].
In the record, Plaintiff makes it clear that she is a Vietnamese refugee and further highlights this fact when describing many of her mental ailments, which she alleges were caused in large part by her experience as a Vietnamese Refugee. It is very likely that Plaintiff, as a non-English speaking applicant, made an unintended error in filling out the application for SSI benefits. This single instance cited by the ALJ, does not rise to the level of substantial evidence sufficient to support the ALJ's decision that Plaintiff lacked integrity and credibility. As such, the Court finds that the ALJ's decision as to Plaintiff's credibility is not supported by substantial evidence in the record and was an arbitrary rendering.
The ALJ used this finding that the Plaintiff lacked credibility to dismiss her complaints about the degree of pain she suffered. While subjective complaints about physical pain must have some sort of supporting medical evidence, it is not necessary that the evidence demonstrate that an applicant suffers from a condition which would make pain inevitable. Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (holding that to do so would make testimony about pain unnecessary). Additionally, there are situations where objective medical findings establish the existence of a medical impairment, but a claimant testifies that she experiences pain at a higher level. The Ninth Circuit recognizes that pain is a highly idiosyncratic phenomenon that varies according to the tolerance and stamina of the individual sufferer. Id.
In support of his rejection of Plaintiff's testimony, the ALJ stated that neurological and orthopedic evaluations had revealed very little evidence of any significant disabling abnormality of Plaintiff's upper or lower extremities or spine. [Tr. 32]. While this finding is true, there is ample evidence in the record that Plaintiff suffered from CTS and osteoarthritis, among other physical conditions, that could have reasonably been the cause of Plaintiff's pain. The absence of any significant disabling abnormality is not sufficient to dismiss Plaintiff's complaints. Once a claimant produces medical evidence of an underlying impairment that can reasonably be assumed to be the cause of the pain, a claimant's testimony about subjective symptoms cannot be discredited merely because it is unsupported by objective evidence. Bunnell, 947 F.2d at 343. If there is no evidence that the claimant is malingering, then claimant's testimony can only be rejected for clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995).
The ALJ also stated that Plaintiff had not participated in any significant pain regimen or therapy program. [Tr. 33]. However, Plaintiff was a regular patient at the Alvarado Pain and Rehabilitation Center, and was treated by Dr. Gaidry who specialized in pain and rehabilitation. [Tr. 310].
The ALJ also notes that Plaintiff was not using the strong codeine or morphine-based analgesics ordinarily prescribed for severe and unremitting pain and that there were no side effects from the medications that she had been taking. [Tr. 33]. However, it is clear from the record that Plaintiff was prescribed pain medication including Tylenol #3, Naproxen, Motrin, Tolectin, Tylenol with codeine, and she reported in her June 1996 SSI application that she was having stomach problems and excessive fatigue because of the pain medication. [Tr. 290; 204; 173; 208]. The ALJ went on to note that Plaintiff's activities were only self-restricted and that he could find no credible medical evidence that indicated that the claimant was as limited as she indicated. However, the Court notes several medical opinions within the record prescribing Plaintiff to limit herself as she did, including those of Dr. Sidrik, Dr. Gaidry, Dr. Morgan and Drs. Vu and Pham. [Tr. 319; 321; 290; 204; 202]. The Court also notes ample evidence within the record which demonstrates that Plaintiff's diagnosed ailments were of the sort that could significantly limit her activities.
2. The ALJ's Evaluation of the Medical Evidence
The Ninth Circuit has consistently held that "the ALJ is responsible for determining credibility and resolving conflicts in medical testimony." Magallenes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Ninth Circuit distinguishes among the opinions of the three types of physicians: 1) those who treat the claimant (treating physicians); 2) those who examine, but do not treat the claimant (examining physicians); 3) those who neither examine nor treat the claimant (nonexamining physicians). Lester, 81 F.3d at 830.
Because treating physicians are employed to cure, and have a greater opportunity to know and observe the patient, a treating physician's opinion, while not binding, is entitled to special weight. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating physician's testimony or ultimate conclusions are uncontroverted, an ALJ must set forth clear and convincing reasons for rejecting either. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989); see also Magallanes, 881 F.2d at 751. Even when a treating physician's testimony is contradicted, the ALJ may only reject it if the ALJ articulates specific and legitimate reasons that are supported by substantial evidence in the record. Magallanes, 881 F.2d at 751; Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). "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." Id.
Similarly, the opinion of an examining physician is entitled to greater weight than the opinion of a nonexamining physician. Lester, 81 F.3d at 830; Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). If the Commissioner rejects the uncontroverted opinion of an examining physician, there must also be clear and convincing reasons for doing so. Lester, 81 F.3d at 830. Additionally, if an examining doctor's opinion is contradicted, it can only be rejected for specific and legitimate reasons supported by substantial evidence in the record. Id. at 830-31.
If the opinion of a treating physician is contradicted by the opinion of a nontreating physician, and the nontreating source has independent clinical findings that differ from those of the treating physician, the opinion of the nontreating source may itself be substantial evidence. Andrews, 53 F.3d at 1041. However, if a nontreating source's opinion contradicts that of a treating physician and does not have independent clinical findings, or rests on the clinical findings used by the treating physician, the opinion of the treating source may only be rejected if the ALJ gives specific and legitimate reasons that are based on substantial evidence in the record. Id.
a. Physical Impairments
i. The ALJ Failed to State Specific and Legitimate Reasons Supported by Substantial Evidence in the Record for Rejecting Dr. Morgan's Opinion.
In rejecting Dr. Morgan's opinion concerning Plaintiff's functional limits, the ALJ reasoned that Dr. Morgan's opinion that Plaintiff was unable to work was not supported by Dr. Morgan's own clinical findings. [Tr. 30]. The ALJ stated that although Dr. Morgan only conducted tests for cardiopulmonary issues, which did not reveal any significant pathology, Dr. Morgan premised his findings of significant functional limitation based upon other physicians' diagnoses that Plaintiff suffered from CTS and osteoarthritis. [Tr. 30]. However, upon thorough review of the record, the Court finds this to be an incorrect reiteration of Dr. Morgan's findings.
Dr. Morgan states in his June 4, 1997 letter: " Based on my examination and cardiovascular tests, as well as a review of the patient's medical history, I found that the patient is precluded from employment . . ." ( emphasis added) [Tr. 290]. This demonstrates that Dr. Morgan was not relying solely on the findings of other physicians in coming to his conclusion about Plaintiff's disability and that Dr. Morgan was indeed basing his diagnosis in part on his own clinical findings. [Tr. 290].
Although the ALJ stated that Dr. Morgan did not find any disease with regard to Plaintiff's cardiovascular system, in approximately May of 1996, Dr. Morgan wrote in response to a request for information by the Department of Social Services that he did in fact diagnose Plaintiff with hypertensive cardiovascular disease and hypercholesterolemia. [Tr. 223]. Dr. Morgan also reported that an echocardiogram revealed enlargement of the aortic annulus and that Plaintiff had poor exercise tolerance. [Tr. 290]. After examining Plaintiff, Dr. Morgan opined that Plaintiff's chest pain appeared to be symptomatic of Plaintiff's severe mental problems and depression. [Tr. 290]. The ALJ cited this lack of cardiovascular disease as reason for dismissing Dr. Morgan's opinion that Plaintiff's chest pain was disabling. [Tr. 30].
Under Ninth Circuit law, it is not necessary that an applicant suffer from a condition that would make pain inevitable. Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986). The relevant standard only requires that subjective complaints about physical pain have some sort of supporting medical evidence. Id. Once a claimant produces medical evidence of an underlying impairment that can reasonably be assumed to be the cause of the pain, a claimant's testimony cannot be discredited merely because it is unsupported by objective evidence. Bunnell, 947 F.2d at 343. It was not necessary that Plaintiff's chest pain emanate from cardiovascular disease in order to be disabling, and as Dr. Morgan opined, Plaintiff's pain was caused by her mental illness. [Tr. 291]. Here, the Court finds that Plaintiff was able to produce medical evidence of an underlying impairment that can reasonably be assumed to be the cause of the pain, making the ALJ's outright rejection of Plaintiff's complaints of pain improper.
The ALJ went on to state that Dr. Morgan premised his finding of functional limitations based upon the diagnoses of CTS and osteoarthritis. [Tr. 30]. While this is partially accurate, Dr. Morgan also premised his findings upon Plaintiff's "severe mental problems and depression . . . severe concentration deficiencies and inability to follow directions." [Tr. 290]. During his examination, Dr. Morgan noted that Plaintiff was "teary and depressed," and that, "[his] own examination revealed an average, sad looking individual," thereby premising his findings as to Plaintiff's mental condition upon his own examination as well as upon Plaintiff's medical history. [Tr. 290].
The ALJ further rejected Dr. Morgan's opinion that Plaintiff was disabled based on severe CTS and osteoarthritis because Dr. Morgan had not evaluated or treated the Plaintiff for these conditions and because there was no indication, in the record as a whole, that Plaintiff suffered from these maladies or that Plaintiff's suffering was severe enough to preclude employment. [Tr. 31]. While it is true that Dr. Morgan did not examine Plaintiff for these conditions, the record as a whole reflects that several of Plaintiff's treating physicians did diagnose Plaintiff with these conditions and indicated that Plaintiff was disabled as a result. Dr. Pham treated Plaintiff for arthritis, low back pain and numbness in the hands and opined that Plaintiff was disabled as a result. [Tr. 181-204; 191; 194; 197; 202]. Dr. Vu treated Plaintiff for osteoarthritic pain as well as for Plaintiff's CTS and opined that Plaintiff was disabled as a result. [Tr. 208-213]. Dr. Grisolia diagnosed Plaintiff with CTS. [216-17; 328]. Dr. Sidrick treated Plaintiff for bilateral CTS and arthritis and opined that Plaintiff was disabled and could not work as a hand packager, assembler or laundry worker. [278; 319]. Dr. Gaidry diagnosed Plaintiff with bilateral CTS and increasing joint pain. [Tr. 321].
In rejecting Dr. Morgan's opinion, the ALJ stated that he was not impressed with the Dr. Morgan's opinion or Plaintiff's claims because Plaintiff had not complied with the prescribed treatment protocol of wearing wrist splints. [Tr. 31]. The ALJ seems to base this entire conclusion on his single observation that Plaintiff was not wearing wrists splits at the hearing. [Tr. 31]. However, this conclusion that Plaintiff was not complying with her treatment is not supported by substantial evidence in the record. To the contrary, Dr. Morgan notes in the record that Plaintiff had, "worn splints regularly as prescribed by Dr. Grisolia . . ." and Dr. Sidrick noted that Plaintiff had used splits without success. [Tr. 290; 319].
Because the ALJ failed to cite specific and legitimate reasons, supported by substantial evidence in the record, for rejecting Dr. Morgan's opinion, the Court finds the ALJ's rejection improper.
ii. The ALJ Failed to State Specific and Legitimate Reasons, Supported by Substantial Evidence in the Record, for Rejecting Dr. Gaidry's Opinion.
After thoroughly reviewing the report of Dr. Gaidry, the ALJ rejected both Dr. Gaidry's diagnostic impressions, as well as his opinion about Plaintiff's functional limits. [Tr. 32]. The ALJ first discounted Dr. Gaidry's opinion stating that, "Dr. Gaidry only saw the claimant once in a consultative capacity," and that, "[h]is opinion does not reflect the claimant's usual or typical condition and is not entitled to any special weight." [Tr. 31]. This is incorrect. The ALJ himself notes that, "The claimant was evaluated by Dr. Gaidry on May 15, 1997; May 22, 1997; and May 29, 1997." [Tr. 31]. The record also shows that Dr. Gaidry again evaluated and examined Plaintiff on June 5, 1997. [Tr. 312]. As such, the Court finds the ALJ's treatment and conclusion with regard to Dr. Gaidry's medical opinion to be conclusory and not supported by the administrative record.
The ALJ went on to explain his reasoning for rejecting Dr. Gaidry's opinion that Plaintiff would not benefit from surgery for her CTS because her nerve damage had become irreversible. [Tr. 31]. The ALJ stated that Dr. Gaidry's opinion was contrary to that of Dr. Grisolia's, who felt that Plaintiff should undergo surgery if conservative treatment was not successful. [Tr. 31]. However, the Court is not persuaded by the ALJ's conclusion, as review of the record clearly demonstrates that the ALJ's reiteration of Dr. Grisolia's opinion is inaccurate. In his October 24, 1994 letter to Dr. Vu, Dr. Grisolia wrote, "[i]f the patient fails conservative management for the carpal tunnel, then surgical therapy might be appropriate. I would leave the choice of surgical consultant up to you." [Tr. 217]. Even if Dr. Grisolia had felt that Plaintiff should undergo surgery, it still would not undermine Dr. Gaidry's opinion that to do so would be futile due to what Dr. Gaidry diagnosed as Plaintiff's irreversible nerve damage. In support of Dr. Gaidry's assessment, Dr. Sidrik opined that it was doubtful that surgery would be effective given the advanced state of Plaintiff's carpal tunnel. [Tr. 313].
With regard to the ALJ's statement that, "the effectiveness of conservative treatment cannot be determined, as the claimant has failed to follow the advised treatment of wearing splints" the Court finds this statement to be conclusory and unsupported by the record. [Tr. 32]. As with the ALJ's previous statement to this effect, he appears to be basing it on a single observation that is not supported by any evidence in the record, and is instead contradicted by evidence in the record. The ALJ concludes this paragraph by stating,". . . . I am finding that if she did undergo surgery, it would alleviate her impairments, and therefore she would not have any manipulative or other limitation caused by the carpal tunnel syndrome." [Tr. 32]. However, the ALJ did not state any basis for this belief and the Court notes the absence of any medical evidence in the record that supports this conclusion.
The ALJ found that Dr. Gaidry's opinion of disability was inconsistent with his physical exam because his exam:
revealed no significant abnormality in the lumbar spine except for slight tenderness and paraspinal muscle spasm with subjective pain on lumbar flexion. There is no indication of any restricted range of motion in the lumbar spine. Examination of the cervical spine showed only a suggestion of thyromegaly. Exam of the thoracic spine was normal. Exam of the upper extremities revealed no abnormality except for signs of tenosynovitis in the smaller joints of the hands, There was no indication of any abnormality in the lower extremities, and the claimant had reported full range of motion. There was no indication of any cardiovascular or pulmonary abnormality. . . . There is no indication of any reflex or sensory abnormalities, and the claimant's gait was considered satisfactory. [Tr. 32; 312].
The ALJ found that these clinical results were inconsistent with Dr. Gaidry's assessment that Plaintiff was unable to work on a sustained basis. [Tr. 32]. However, the ALJ did not explain how these clinical results undermined Dr. Gaidry's diagnostic impression of: moderate to severe bilateral CTS, major depressive disorder, PTSD, generalized arthritis, lumbar spondylosis with spasm, coronary artery disease, hypertensive cardiovascular disease, chronic bronchitis, gastrointestinal problems, and urinary incontinence. [Tr. 312]. The ALJ also did not address how Dr. Gaidry's diagnosis undermined his opinion that Plaintiff had considerable difficulty in day to day functioning due to these problems and would therefore not be a suitable candidate for work. [Tr. 313]. Finally, the ALJ stated that Dr. Gaidry's opinion of disability was inconsistent with "the other credible evidence of record," without identifying or explaining what the other credible evidence of record was. [Tr. 32].
iv. The ALJ Improperly Relied on Non-Treating Sources in Finding That Plaintiff Was Not Disabled Due to Physical Impairments.
When the opinions of treating Drs. Gaidry and Morgan are afforded their proper weight, and their opinions taken into account, it is clear that the ALJ's reliance solely upon non-treating Drs. Yalam and Schillaci in determining that Plaintiff was not disabled as a result of her physical impairments is improper. The ALJ relied heavily on the Social Security Administration's (SSA) medical consultants in determining that Plaintiff's combined physical impairments did not preclude Plaintiff from performing medium-level work activity on a sustained basis. However, because the ALJ's rejection of several of Plaintiff's treating and examining physicians was erroneous, the subsequent total reliance on the medical consultants was not only improper under the relevant standard, but also it does not constitute substantial evidence sufficient to justify the ALJ's decision.
b. Mental Impairments
i. The ALJ's Rejection of Dr. Slotkin's Opinion Was Not Supported by Clear and Convincing Reasons, Which Were Based on Substantial Evidence in the Record.
The Court finds the ALJ's statement that Dr. Slotkin was the only treating source to be inaccurate and not supported by the record. [Tr. 35]. Nonetheless, the ALJ noted the differences between the diagnoses of Dr. Slotkin, and two of the physicians employed by the SSA, Drs. Abejuela and Dwyer, and relied upon such differences to support his conclusion that the latter two represented the more accurate picture of Plaintiff's mental health. [Tr. 34]. The ALJ explained that, "reports concerning [Plaintiff's] mental and emotional condition consist[ed] primarily of information derived from an interpreter of unknown ability in language translation expertise," thereby making it unclear whether the information came from the interpreter's scenario of the facts or from the facts recalled by Plaintiff. [Tr. 35]. The ALJ pointed out that Dr. Abejuela was excluded from this troubling group because he had used a certified translator during his examinations. [Tr. 35]. Nevertheless, there is no requirement that a treating physician list the name of an interpreter, and an adverse decision based on a failure to do so is not supported by a specific and legitimate reason based on substantial evidence in the record. Ghokassian v. Shalala, 41 F.3d 300, 304 (9th Cir. 1994). Additionally, a survey of the information contained in all the medical report reveals a general uniformity in the information derived, even with the use of these unidentified translators, which ultimately undermines the ALJ's reasons for rejecting reports involving unidentified translators. [Tr. 220; 290; 237; 316; 319; 310; 269; 271; 239; 247].
Based on the ALJ's assessment of the situation with the translators, the ALJ concluded that the truth and accuracy of the information relating to Plaintiff's health was strictly dependent on the integrity and veracity of the claimant and her ability to accurately recall events related to the condition of her health. [Tr. 35]. At that point, the ALJ referred back to the previous section in his decision where he erroneously determined that Plaintiff lacked credibility and incorrectly stated that there is a lack of documentation to establish her condition as labor disabling. For the reasons set forth above, the Court finds the ALJ's dismissal of Plaintiff's credibility and the credibility of her complaints to be erroneous and unsupported by the record.
ii. The ALJ's Rejection of Dr. Cherlin's Opinion Was Not Supported by Specific and Legitimate Reasons, Which Were Based on Substantial Evidence in the Record.
The ALJ argued that Dr. Cherlin's opinion that Plaintiff was disabled was not supported by objective findings. [Tr. 36-7]. The ALJ stated in his decision that Dr. Cherlin's GAF rating for Plaintiff of 50 to 55 reflected only a fair impairment of the claimant's functioning, which the ALJ argues is inconsistent with Dr. Cherlin's assessment. [Tr. 36]. The ALJ also noted that Dr. Cherlin had not formally tested Plaintiff and that his mental status exam was not consistent with the significant functional limits to which he opined. [Tr. 36]. However, Dr. Cherlin did not base his opinion solely on the parts of the record that the ALJ chose to focus on. Dr. Cherlin saw Plaintiff regularly over a period of 2 to 3 years and was able to develop a diagnostic impression of Plaintiff's condition over that period which ultimately formed the basis of Dr. Cherlin's opinion concerning Plaintiff's disability. [Tr. 269]. It is not sufficient for the ALJ to cite to the few parts of Dr. Cherlin's opinion that do not support his ultimate finding while ignoring the majority of Dr. Cherlin's writings that supported his ultimate conclusion.
Dr. Cherlin's opinion was also improperly rejected when the ALJ stated that he discounted Dr. Cherlin's opinion because the Dr. was an "advocate for the claimant's claim for disability." [Tr. 37]. The ALJ reasoned that because Dr. Cherlin treated Plaintiff's husband, who was also a recipient of SSI benefits, that this was evidence of the Dr. Cherlin's "significant bias". [Tr. 37]. The ALJ further stated that the allegations of bias were supported by the "sudden change in treatment from Dr. Slotkin to Dr. Cherlin on the behest of an unknown interpreter whom the claimant would not identify." [Tr. 37]. The ALJ cited to this as a clear case of, "one person having been channeled from one psychiatrist to another in order to get a more favorable view and opinion for purposes of supplemental security income disability benefits." [Tr. 37].
The Court finds that the reasoning provided by the ALJ for discrediting Dr. Cherlin's opinion is baseless and lacks support. Furthermore, the law in the Ninth Circuit makes it clear that the purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them. Lester v. Chather, 81 F.3d 821, 832 (9th Cir. 1996). Although the ALJ can introduce evidence if actual improprieties exist, the ALJ may not assume that doctors routinely lie in order to help their patients collect disability benefits. Id. In this instance, there is no evidence that Dr. Cherlin did anything improper.
Finally, the ALJ rejected Dr. Cherlin's opinion reasoning that his report was stated in very general terms and could apply to all of Dr. Cherlin's Southeast Asian patients. [Tr. 37]. The ALJ does not state why this is true or how he came to know this about all of Dr. Cherlin's patients. Also the ALJ discredited Dr. Cherlin's examinations because the ALJ found it incredible that although Plaintiff was unable to communicate in English, Dr. Cherlin was able to determine that Plaintiff had pressured speech and diminished concentration and attention. [Tr. 37]. The ALJ concluded that Dr. Cherlin's entire report was subjective and based upon what the interpreter told Dr. Cherlin. This is an improper rejection of Dr. Cherlin's opinion. Almost all of the doctors Plaintiff saw used an interpreter. It was not only inappropriate to single out and dismiss only Dr. Cherlin's opinion on this basis, but the use of an interpreter itself does not constitute a legitimate reason for dismissing either Dr. Cherlin's or any of the other doctors' findings. Cf. Ghokassian, 41 F.3d at 304.
iii. The ALJ's Rejection of Dr. Garman's Opinion Was Not Supported by Specific and Legitimate Reasons, Which Were Based on Substantial Evidence in the Record.
The ALJ stated that Dr. Garman's opinion was, "inconsistent with all of the other examining mental health professionals." [Tr. 38]. This is an incorrect characterization of Dr. Garman's opinion. What was different about Dr. Garman's report was that Plaintiff was reporting an increase in the severity of the symptoms that she had previously reported in other examinations. [Tr. 271-73]. Additionally, Dr. Garman's opinion that Plaintiff was disabled as a result was consistent with the opinions of several other treating and examining physicians including Drs. Pham, Vu, Morgan, Sidrik, Gaidry, Slotkin, and Cherlin. [Tr. 191, 194, 197, 202; 213; 220; 290; 274; 313; 252; 310; 269]. The ALJ stated that Plaintiff's allegations of memory problems in Dr. Garman's report was of questionable veracity because Plaintiff alleged an inability to recall details or dates of past events such as the years she went to school, when she was married, the number of children she had or whether or not she had been hospitalized in Vietnam. [Tr. 38].
However, it is notable that Plaintiff did complain of significant memory problems to Drs. Cherlin, Slotkin, Abejuela, and Dwyer. [Tr. 270; 252; 243; 247]. The ALJ pointed out as an inconsistency between Dr. Garman's mental status exam and those of Drs. Cherlin, Slotkin, Abejuela and Dwyer, the fact that claimant was not oriented in date, and went on to incorrectly state that Plaintiff was oriented in all spheres in all of the other mental status exams. [Tr. 37]. In his report, Dr. Cherlin stated that Plaintiff was unsure of the day or date and that Plaintiff complained of being forgetful at times and had caused a fire in her home because she forgot something was cooking on the stove. [Tr. 270]. Dr. Slotkin reported that Plaintiff complained of forgetfulness and memory loss. [Tr. 252]. The ALJ also failed to mention that Dr. Garman administered a battery of tests, including the Wechsler Adult Intelligence Test, the Wechsler Memory Test and the Raven Test, and used the results to form his opinion. It was improper to reject Dr. Garman's report merely because Plaintiff was complaining of symptoms which were worsening.
The ALJ used these alleged inconsistencies to call into question the veracity of Plaintiff's other complaints of hearing voices and seeing things. [Tr. 38]. However, because the ALJ incorrectly discounted Plaintiff's propensity for truthfulness, it was improper for him to outright reject Plaintiff's complaints as untruthful, despite the fact that she had not complained of such symptoms in previous examinations with other health care providers. As Dr. Garman's opinion was consistent with, and supported by, the record, it was improper for the ALJ to reject it.
iv. The ALJ Improperly Relied on Non-Treating Sources in Finding That Plaintiff Was Not Disabled Due to Mental Impairments.
In finding that Plaintiff was not disabled due to her mental impairments, the ALJ improperly relied on the opinions of Drs. Abejuela and Dwyer. Both were examiners who met with Plaintiff once at the request of the state. However, when the opinions of treating Drs. Cherlin, Slotkin, and Garman are afforded proper weight, it is clear that the weight the ALJ afforded the non-treating SSI doctors was improper. The opinion of a treating physician is often given greater deference because "he is employed to cure and has a greater opportunity to know and observe the patient as an individual." Morgan v. Apfel, 169 F.3d 595, 600-01 (9th Cir. 1999). A treating physician's medical opinion is entitled to controlling weight where that opinion "is supported by medically acceptable diagnostic techniques and is not inconsistent with other substantial evidence in the record." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(d)(2).
The ALJ reiterated Dr. Abejuela's and Dr. Dwyer's findings, which did not support Plaintiff's claims of disability. However, it is not sufficient for the ALJ to state that Dr. Abejuela's report is "better" and to refer to Dr. Dwyer's report as more reliable without any further explanation. [Tr. 34-35]. Dr. Cherlin's and Dr. Slotkins opinions were well supported by the independent clinical studies performed by Dr. Garman. In addition, the fact that Drs. Slotkin, Cherlin, Garman, Gaidry and Morgan all shared similar opinions with regard to Plaintiff's mental condition clearly support Plaintiff's claim of a disabling mental condition and undermine any notion that the opinions of Drs. Abejuela and Dwyer were supported by substantial evidence in the record.
The ALJ also overlooked the fact that Dr. Dwyer's report did state that Plaintiff suffered from chronic PTSD and that Plaintiff had a GAF of 45, which indicated serious mental impairments. [Tr. 247-48]. Also Dr. Abejuela stated that it would behoove Plaintiff to get involved with intensive psychiatric rehabilitation. [Tr. 244]. Finally, it is notable that the reports from Drs. Abejuela and Dwyer were from 1995, whereas Drs. Cherlin and Garman submitted reports in 1997. [247-48; 244; 268-69, 333; 271-73]. Given the stark contrast between the opinions of Drs. Abejuela and Dwyer and the opinions of all of Plaintiff's treating physicians, it was improper for the ALJ to give controlling weight to state doctors' opinions in finding that Plaintiff was not disabled, since Plaintiff's condition could have changed during the two years separating the reports.
3. The ALJ's Finding That Plaintiff Was Not Disabled Was Not Supported by Substantial Evidence in the Record.
Where the ALJ fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, we can credit that opinion as a matter of law. Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989). Similarly, where the ALJ improperly rejects the claimant's testimony regarding limitations, and the claimant would be disabled if the testimony were credited, the court will not remand solely to allow the ALJ to make specific findings regarding that testimony.
In reviewing the record as whole, and weighing both the evidence that supports and that which detracts from the ALJ's conclusion, it is apparent to the Court that the ALJ's decision that Plaintiff was not disabled was not supported by substantial evidence. The ALJ relied heavily on the SSA medical consultants in determining that Plaintiff's combined physical impairments did not preclude Plaintiff from performing medium-level work activity on a sustained basis. Additionally, the ALJ relied heavily on the SSA medical consultants in determining that Plaintiff's mental impairments were not severe enough to be disabling. However, because the ALJ's rejection of several of Plaintiff's treating and examining physicians was erroneous, the subsequent total reliance on the SSA medical consultants does not constitute substantial evidence to justify the ALJ's decision. A review of the record suggests that the ALJ relied solely on the testimony of the SSA experts in flagrant disregard of overwhelming medical evidence to the contrary.
a. Plaintiff Met the 'A' and 'B' Criteria for Listing 12.04 and Was Disabled Per Se.
The SSA regulations list certain impairments which are so severe as to constitute disability per se. 20 C.F.R. Pt. 404. If a claimant meets or equals a listed impairment, he or she will be found disabled at this step without further inquiry. See C.F.R. § 404.1520 (d). 20 C.F.R. Pt. 404 Listing 12.02, which deals with Organic Mental Disorders, and Listing 12.04, which deals with Affective Disorders, name conditions so severe that they are irrebutably presumed disabling, without any specific finding as to the claimant's ability to perform his past relevant work or any other jobs. 20 C.F.R. § 404.1520(d).
A claimant may establish that an alleged impairment satisfies the Listing of Impairments criteria in two ways. Proceeding under the first method, a claimant can establish a disabling impairment by demonstrating the presence of conditions described in categories 'A' and 'B' of listing 12.04. When a claimant satisfies the category 'A' and 'B' requirements, the claimant is conclusively presumed disabled. Where a claimant is unable to establish the requirements set forth in categories 'A' and 'B', the claimant may still demonstrate a disabling impairment under the second method, by satisfying the criteria in category 'C'. In order to satisfy the criteria for a Listing, a claimant must have not only the diagnosis, but also the medical findings specified for the Listing. Young v. Sullivan, 911 F.2d 180, 183-84, (9th Cir. 2002).
The record indicates that Plaintiff's symptoms met at least four of the 'A' criteria and at least three of the 'B' criteria under Listing 12.04. [Tr. 520-21]. Under 12.04(A), there must exist a medically documented persistence, either continuous or intermittent, of one of the following: a) Anhedonia or pervasive loss of interest in almost all activities; or b) Appetite disturbance with change in weight; or c) Sleep disturbance; or d) Psychomotor agitation or retardation; or e) Decreased energy; or f) Feelings of guilt or worthlessness; or g) Difficulty concentrating or thinking; or h) Thoughts of suicide; or i) Hallucinations, delusions, or paranoid thinking. . . . Specifically, Plaintiff has demonstrated the following of Listing 12.04(A): a) andohenia or pervasive loss of interest in almost all activities [Tr. 269, 333]; c) sleep disturbance [Tr. 268; 333]; e) decreased energy [Tr. 333]; g) difficulty concentrating or thinking [Tr. 333]; i) hallucinations, delusions or paranoid thinking [Tr. 268].
Under the first method, once a claimant satisfies the category 'A' criteria, the claimant must then satisfy the category 'B' criteria, which describes impairment related functional limitations that are incompatible with the ability to do any gainful activity and include four subcategories: (1) activities of daily living, (2) social functioning, (3) concentration, persistence or pace, and (4) the presence or absence of episodes of decompensation. To satisfy the category 'B' criteria, the claimant must demonstrate 'marked' restrictions or difficulties in at least two of the four subcategories. Marked "means more than moderate but less than extreme" in severity. 20 C.F.R. Pt. 404 Listing 12.00. A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with [a claimant's] ability to function independently, appropriately, effectively, and on a sustained basis." Id.
The 'activities of daily living' subcategory considers the claimant's ability to perform typical daily activities such as "cleaning, shopping, cooking, taking public transportation, paying bills, [and] maintaining a residence." Id. The 'social functioning' subcategory considers the claimant's "capacity to interact independently, appropriately, effectively, and on a sustained basis with other individuals." Id. Evidence of impaired or marked social functioning may consist of, "a history of altercations . . ., firings, fear of strangers, avoidance of interpersonal relationships, or social isolation." Id. In contrast, evidence of "ability to initiate social contacts with others, communicate clearly with others, or interact and actively participate in group activities" may demonstrate normal social functioning. Id.
The 'concentration, persistence and pace' subcategory considers the claimant's ability "to sustain focused attention and concentration sufficiently long to permit the timely completion of tasks commonly found in work settings." 20 C.F.R. Pt. 404 Listing 12.00. A 'marked' condition may exist when a claimant "cannot complete . . . tasks without extra supervision or assistance, or in accordance with quality and accuracy, standards, or at a consistent pace without unreasonable number and length of rest periods, or without undue interruptions and distractions. Id. Last, the 'episodes of decompensation' subcategory considers whether the claimant experiences "exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing" any of the activities in the previous three categories. Id. "Episodes of decompensation may be demonstrated by an exacerbation in symptoms or signs that would ordinarily require increased treatment or less stressful situation (or combination of the two)." Id.
In the present case, when the opinions of the treating doctors are properly taken into account, it is apparent that Plaintiff suffers from at least three of the 'B' criteria listed. Plaintiff has exhibited marked difficulties in daily living, in maintaining social functioning, and frequent deficiencies of concentration, which all find support in the record in Plaintiff's inability to leave her house, the fire she caused in her home because of her poor memory, and her inability to administer her own medication. [Tr. 27]. Additionally, Dr. Cherlin opined that Plaintiff was unable to manage funds on her own behalf, that her ability to follow rules, to relate to co-workers, to deal with the public, and her ability to function independently would be poor. He concluded that Plaintiff would have severe difficulties functioning socially and interpersonally. [Tr. 62].
Since the Court must accept the doctors' opinions and the claimant's testimony as a matter of law and, accordingly, remand for payment of benefits, whether Plaintiff's limitations arise solely from her mental impairment or from some combination of her mental and physical impairments, Plaintiff meets or equals Listing § 12.04 and is entitled to a conclusive presumption of disability. No purpose would be served by remanding for further proceedings. As such, the evidence, when it is given the proper deference and weight required by law demonstrate that Plaintiff meets or equals Listing § 12.04, and the Court hereby recommends that the instant action be remanded for payment of benefits.
4. Plaintiff is entitled to award of Social Security Benefits:
Award of social security benefits is recommended where the ALJ improperly discounted the opinion of Plaintiff's treating physicians and substantial evidence did not support the ALJ's denial of benefits but rather compelled the opposite conclusion. Where there is a need to further develop the record, a remand for further administrative proceedings is appropriate. Conversely, if the record is fully developed and no additional administrative proceedings are needed, the district court has the discretion to remand for an immediate reward of benefits. Ghokassian, 41 F.3d at 1304; See Varney v. Sec. of Health and Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988). Additionally, the district court should credit evidence that was improperly rejected during the administrative process and remand for an immediate award of benefits if: 1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; 2) there are no outstanding issues that must be resolved before a determination of disability can be made; and 3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) quoting Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000); see also McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). In the instant case, because the ALJ failed to provide legally sufficient reasons for rejecting the treating physicians' opinions, and because the ALJ improperly discounted Plaintiff's credibility, the evidence here is credited as true. Harman, 211 F.3d at 1179.
V. Conclusion
A thorough review of the record as a whole, in combination with the foregoing reasons, indicate that the ALJ's decision was not supported by substantial evidence. The ALJ erred in discounting the opinions of Plaintiff's treating physicians and failed to provide substantial evidence to support the ALJ's ultimate finding that Plaintiff was not disabled. Because it is unnecessary to remand for further administrative proceedings, it is recommended that Plaintiff's Motion for Judgment Reversing the Commissioner's Decision be GRANTED, that Defendant's Cross-Motion for Summary Judgement be DENIED, and that the matter be REMANDED to the Social Security Administration only insofar as necessary to determine the appropriate award of disability income benefits.
This report and recommendation will be submitted to the United States District Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. Written objections and any response on those objections shall be filed pursuant to the provisions of Federal Rules. The parties are advised that failure to file objections within the proper time periods may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 113 (9th Cir. 1991).
IT IS SO ORDERED.