Case Information
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6 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON 7 ENRIQUE POLA, ) )
8 No. CV-12-3068-CI Plaintiff, ) 9 ) ) ) ) ) ) ) ) ) ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. 10 CAROLYN W. COLVIN, Acting Commissioner of Social
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Security, [1]
Defendant.
BEFORE THE COURT are cross-motions for Summary Judgment. ECF No. 16, 20. Attorney D. James Tree represents Enrique Pola(Plaintiff); Special Assistant United States Attorney Brett E. Eckelberg represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 6. After reviewing the administrative record and briefs filed by the parties, the court GRANTS Plaintiff’s Motion for Summary Judgment and DENIES Defendant’s Motion for Summary Judgment.
JURISDICTION On August 6, 2007, Plaintiff filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning December 1, 2004, and later amended the onset date to September 30, 2007. Tr. 21; 38. Plaintiff reported that his ability to work was limited by a pinched nerve, bad back, tiredness, depression and schizophrenia. Tr. 199. He explained that his condition causes him severe emotional problems, fatigue, back pain, impedes his memory and concentration, and he is unable to “deal with people.” Tr. 199. Plaintiff’s claim was denied initially and on reconsideration, and he requested a hearing before an administrative law judge (ALJ). Tr. 56-133. A hearing was held on April 16, 2010, at which vocational expert Scott Witmer, Plaintiff’s wife Sylvia Pola, and Plaintiff, who was represented by counsel, testified. Tr. 35-54. ALJ Kim D. Parrish presided from Oklahoma City. Tr. 37. The ALJ denied benefits on May 28, 2010. Tr. 21-30. The instant matter is before this court pursuant to 42 U.S.C. § 405(g).
STATEMENT OF THE CASE The facts of the case are set forth in detail in the transcript of proceedings and are briefly summarized here. At the time of the hearing, Plaintiff was 48 years old. Tr. 40. He earned a high school diploma, and his past jobs included working as a certified nurse’s aide and as a janitor. Tr. 40; 50.
Plaintiff testified that as a child, he was physically and sexually abused, and he was raised by a single mother. Tr. 42. He said that in 2007, he frequently experienced thoughts of suicide. Tr. 42-43.
Plaintiff testified that his back and hips hurt, and he is often tired. Tr. 43. He said he does not sleep well and during the night he worries and checks multiple times to ensure the door is locked. Tr. 44. He said he suffers from anxiety, during which he becomes frightened, and his mind and heart start racing. Tr. 46. Plaintiff’s wife testified that he rarely leaves the home, and if he does occasion into a store with her, he is loud and makes rude comments about other people. Tr. 48.
ADMINISTRATIVE DECISION At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since during the period from his alleged onset date of September 30, 2007, through his date of last insured. Tr. 23. At step two, he found Plaintiff had the severe impairments of schizoaffective disorder, antisocial disorder, and histrionic personality disorder. Tr. 23. At step three, the ALJ determined Plaintiff’s impairments, alone and in combination, did not meet or medically equal one of the listed impairments in 20 C.F.R., Subpart P, Appendix 1(20 C.F.R. §§ 416.920(d), 416.925 and 416.926). Tr. 23. The ALJ found Plaintiff has the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels but with the following nonexertional limitations: “the claimant requires to work [sic] in relative isolation with limited contact with peers, supervisors, and the general public. The claimant is able to sustain concentration necessary for unskilled work.” Tr. 24.
In step four findings, the ALJ found Plaintiff’s statements regarding pain and limitations were not credible to the extent they were inconsistent with the RFC findings. Tr. 25. Also, the ALJ found that Plaintiff is unable to perform past relevant work. Tr. 28. The ALJ concluded that jobs exist in significant numbers in the national economy that Plaintiff can perform, and identified representative occupations such as baker racker, warehouse hand cutter, and weight tester. Tr. 29.
STANDARD OF REVIEW In Edlund v. Massanari , 253 F.3d 1152, 1156 (9 th Cir. 2001), the court set out the standard of review:
A district court’s order upholding the Commissioner’s denial of benefits is reviewed de novo . Harman v. Apfel , 211 F.3d 1172, 1174 (9th Cir. 2000). The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales , 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett , 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin. , 169 F.3d 595, 599 (9th Cir. 1999). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala , 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo , although deference is owed to a reasonable construction of the applicable statutes. McNatt v. Apfel , 201 F.3d 1084, 1087 (9th Cir. 2000). It is the role of the trier of fact, not this court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett , 180 F.3d at 1097; Allen v. Heckler , 749 F.2d 577, 579 (9 th Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services , 839 F.2d 432, 433 (9 th Cir. 1988). If substantial evidence exists to support the administrative findings, or if conflicting evidence exists that will support a finding of either disability or non-disability, the Commissioner’s determination is conclusive. Sprague v. Bowen , 812 F.2d 1226, 1229- 1230 (9 th Cir. 1987).
SEQUENTIAL PROCESS The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); see Bowen v. Yuckert , 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Tackett , 180 F.3d at 1098-99. This burden is met once a claimant establishes that a physical or mental impairment prevents him from engaging in his previous occupation. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the ALJ proceeds to step five, and the burden shifts to the Commissioner to show that (1) the claimant can make an adjustment to other work; and (2) specific jobs exist in the national economy which claimant can perform. Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an adjustment to other work in the national economy, a finding of “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v).
ISSUES The question presented is whether substantial evidence exists to support the ALJ's decision denying benefits and, if so, whether that decision is based on proper legal standards. Plaintiff contends that the ALJ erred by failing to properly weigh the medical opinions and by finding Plaintiff lacked credibility. ECF No. 16, 21.
DISCUSSION The Plaintiff argues that the ALJ erred by failing to provide a complete hypothetical and by finding Plaintiff’s subjective complaints not credible. [2] ECF No. 16. Specifically, Plaintiff contends that the hypothetical the ALJ proposed to the vocational expert was incomplete because it failed to include the multiple “moderate” limitations assessed by Dr. Flanagan. ECF No. 16 at 13- 14.
Opinions from non-examining medical sources are to be given less weight than treating or examining doctors. Lester , 81 F.3d at 831. An ALJ must evaluate the opinion of a non-examining source and explain the weight given to it. SSR 96-6p. Although an ALJ generally gives more weight to an examining doctor's opinion than to a non-examining doctor's opinion, a non-examining doctor's opinion may nonetheless constitute substantial evidence if it is consistent with other independent evidence in the record. Thomas v. Barnhart , 278 F.3d 947, 957 (9th Cir. 2002).
In analyzing medical opinions, the ALJ must do more than merely state his conclusions: "He must set forth his own interpretations and explain why they, rather than the doctors,' are correct." Reddick , 157 F.3d at 725 (citing Embrey v. Bowen , 849 F.2d 418, 421-22 (9th Cir. 1988)). The ALJ’s conclusions must be supported by substantial evidence. Reddick , 157 F.3d at 725. A medical opinion may be rejected by the ALJ if it is conclusory, contains inconsistencies, or is inadequately supported. Bray v. Comm'r Soc. Sec. Admin. , 554 F.3d 1219, 1228 (9th Cir. 2009); Thomas , 278 F.3d at 957. In assessing a claimant's residual functional capacity, an ALJ must consider and evaluate the opinions of state agency physicians or psychologists using all factors set forth in the regulations for analyzing opinion evidence. SSR 96-6p.
In this case, the ALJ’s explanation of the weight he gave to all the medical assessments was provided in a single sentence: “As for the opinion evidence, the claimant has not had any permanent limitations or restrictions placed on his ability to perform basic work activities by any treating or examining physicians.” Tr. 28. This conclusion is not supported by the record.
On November 15, 2007, Rita Flanagan, Ph.D., reviewed Plaintiff’s file and completed a check the box Mental Residual Functional Capacity Assessment. In that assessment, Dr. Flanagan opined that Plaintiff was markedly limited in his ability to interact appropriately with the general public. Tr. 371. In the check-the-box portion of the form, section I, Dr. Flanagan assessed Plaintiff with moderate [3] limitations in his ability to (1) understand and remember detailed items; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods; (4) work in coordination or proximity to others without being distracted by them; (5) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (6) get along with coworkers or peers without distracting them or exhibiting behavior extremes; and (7) respond appropriately to changes in the work setting. Tr. 370-71.
In section III, the narrative portion of the form, Dr. Flanagan explained that Plaintiff’s allegations “are not fully credible,” because over time, he reported different symptoms to different providers. Tr. 372. However, Dr. Flanagan concluded, “[r]egardless of credibility issues, [claimant] appears to experience bona fide [symptoms], but would still be capable of [simple work].” Tr. 372. Dr. Flanagan added that Plaintiff would work best away from the public, with little interaction, and he could benefit from additional time to adapt to change in the work setting. Tr. 372.
At the hearing, the vocational expert was presented with a hypothetical that included all the section I “moderate” limitations assessed by Dr. Flanagan. Tr. 52-53. In response to that hypothetical, the vocational expert stated, “[a]ssuming that a person manifests those issues and those problems on a daily basis in a work setting, one would quickly be terminated.” Tr. 53. The vocational expert also opined that having a single moderate limitation in the ability to complete a normal workday and workweek due to psychologically based symptoms that would interrupt a consistent pace would affect an individual’s ability to sustain employment in an unskilled job because pace is “one of the primary essential points of an unskilled job.” Tr. 53-54.
The ALJ found that Plaintiff’s RFC included a full range of work at all exertional levels with the single limitation that Plaintiff was to have limited contact with peers, supervisors and the general public, and the ALJ opined that Plaintiff “is able to sustain concentration necessary for unskilled work.” Tr. 24. Plaintiff contends that the RFC was inaccurate because it failed to incorporate the multiple “moderate” limitations expressed by Dr. Flanagan. ECF No. 21 at 6-7. Defendant counters that section I is “merely a worksheet,” is not as important as section III, and cites an unpublished case as support. ECF No. 20 at 9-10. Inherent in both parties’ argument is the fact that Dr. Flanagan’s report appears internally inconsistent. In section I, the doctor assesses multiple “moderate” limitations. Tr. 370-71. In section III, the doctor opined Plaintiff is capable of simple work, but noted Plaintiff’s concentration and persistence will be impaired. Tr. 372. Compounding the problem is the VE opinion that the “moderate” limitations assessed in section I preclude all work for Plaintiff.
The ALJ is responsible for resolving conflicts in medical testimony. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The ALJ is likewise responsible for resolving ambiguities. See Vincent on Behalf of Vincent v. Heckler , 739 F.2d 1393, 1394 (9th Cir. 1984); see also Thorne v. Schweiker , 694 F.2d 170, 172 (8th Cir. 1982). In this case, the ALJ failed to explain the weight given to the individual medical sources and failed to address and resolve the ambiguities presented by Dr. Flanagan’s assessment of Plaintiff’s multiple “moderate” limitations, with the conclusion that he could work. A valid explanation may exist for the omission of the section I limitations assessed by Dr. Flanagan, but the ALJ did not provide one. “Regardless whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate the grounds for h[is] decision and [the courts] confine our review to the reasons supplied by the ALJ." Steele v. Barnhart , 290 F.3d 936, 941(7th Cir. 2002) (citing SEC v. Chenery Corp ., 318 U.S. 80, 93-95, 63 S.Ct. 454, 87 L. Ed. 626 (1943) (other citations omitted)).
In this case, the ALJ failed to specify the weight he gave to the medical assessments in the record. Additionally, the ALJ failed to provide an explanation for rejecting the moderate limitations assessed by Dr. Flanagan. These limitations were not included in the hypothetical posed to the VE. As a result, the hypothetical was incomplete and the VE’s testimony predicated upon the incomplete hypothetical was of “no evidentiary value.” See Carmickle , 533 F.3d at 1166 (VE's testimony "has no evidentiary value" where hypothetical question is incomplete); Lewis v. Apfel , 236 F.3d 503, 517 (9th Cir. 2001).
When an ALJ's denial of benefits is not supported by the record, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Benecke v. Barnhart , 379 F.3d 587, 595 (9th Cir. 2004) (internal quotation marks omitted). The court may exercise discretion and direct an award of benefits "where no useful purpose would be served by further administrative proceedings and the record has been thoroughly developed." Swenson v. Sullivan , 876 F.2d 683, 689 (9th Cir. 1989). Remand for further proceedings is appropriate where outstanding issues exist that must be resolved before a determination 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. See Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009).
In this case, the ALJ failed to provide a specific analysis related to the medical opinion evidence, and thus it is not possible for the court to review whether the medical evidence was properly evaluated. See Lewin v. Schwieker , 654 F.2d 631, 634 (9th Cir. 1981)(ALJ must make fairly detailed findings in support of administrative decisions to permit courts to review those decisions intelligently). As such, remand for additional proceedings is necessary.
CONCLUSION Having reviewed the record and the ALJ's findings, the court concludes the ALJ's decision is not supported by substantial evidence and is based on legal error. On remand, the ALJ shall specifically explain the weight given to all medical source opinions and resolve conflicts between and apparent ambiguities within the medical opinions, and if necessary, provide explanation for why significant probative evidence has been rejected. See, Vincent v. Heckler , 739 F.2d 1393, 1394-1395 (9th Cir. 1984). The decision is therefore REVERSED and the case is REMANDED for further proceedings consistent with this opinion. Accordingly,
IT IS ORDERED:
1. Plaintiff's Motion for Summary Judgment, ECF No. 16 , is GRANTED and the matter is REMANDED to the Commissioner for additional proceedings.
2. Defendant's Motion for Summary Judgment, ECF No. 20 , is DENIED .
3. An application for attorney fees may be filed by separate motion.
The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff, and the file shall be CLOSED .
DATED August 27, 2013.
S/ CYNTHIA IMBROGNO UNITED STATES MAGISTRATE JUDGE
[1] Carolyn W. Colvin became the Acting Commissioner of Social 25 Security on February 14, 2013. Pursuant to F ED . R. C IV . P. 25(d), 26 Carolyn W. Colvin is substituted for Michael J. Astrue as the 27 defendant in this suit. No further action need be taken to continue 28 this suit. 42 U.S.C. § 405(g).
[2] Because the first issue requires remand, the court does not 27 address Plaintiff’s claim that the ALJ erred in his credibility 28 determination.
[3] “Moderate” is not defined within the form.