Opinion
For Rodolfo Gonzalez, Plaintiff: Marc V Kalagian, Law Offices of Rohlfing and Kalagian LLP, Long Beach, CA.
For Carolyn W Colvin, Acting Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Michael K Marriott, LEAD ATTORNEY, SAUSA = Social Security Administration, Office of the General Counsel Region IX, San Francisco, CA.
MEMORANDUM OPINION AND ORDER
ROZELLA A. OLIVER, UNITED STATES MAGISTRATE JUDGE.
I. SUMMARY OF RULING
Plaintiff Rodolfo Gonzalez (" Plaintiff") challenges the denial of his application for disability insurance benefits (" DIB"). The Administrative Law Judge (" ALJ") found that Plaintiff could perform past relevant work, and therefore, is not disabled. (Administrative Record (" AR") 20-21).
Plaintiff contends that the ALJ erred in failing to consider his Alzheimer's disease in assessing his residual functional capacity. Specifically, Plaintiff argues that the ALJ improperly weighted the opinion of his treating physician and failed to properly evaluate his subjective complaints. For the reasons discussed below, this Court finds that Plaintiff's claim has merit.
II. PLAINTIFF'S CONDITIONS AND PROCEEDINGS BELOW
On August 31, 2011, Plaintiff applied for DIB based on a variety of physical and mental ailments. (See AR 136-139). After an administrative hearing, the ALJ found that Plaintiff's mild osteoarthritis of the lumbar spine, mild umbilical hernia, type 2 diabetes mellitus, and mild osteoarthritis of each hip and left foot constituted " severe impairments" under federal regulations but were not severe enough to medically equal a listing. (AR 16-17).
Thereafter, the ALJ studied and assigned varying weight to the opinions of a treating physician, two State agency examining consultants, and other physicians that reviewed Plaintiff's records. (AR 17-20, 74). Specifically, the ALJ gave great weight to the opinions of the consultative examiners and no weight to the opinion of Plaintiff's treating physician. (AR 20). Ultimately, the ALJ found that Plaintiff's medically determinable impairments could have reasonably been expected to cause his alleged symptoms. (AR 18). However, she also found that Plaintiff's statements regarding the intensity, persistence and limiting effects of his symptoms were " not entirely credible." (AR 17-20). As a result, the ALJ determined that Plaintiff had the residual functional capacity (" RFC") to perform the full range of medium work as defined in 20 C.F.R. § 404.1567(c). (AR 17).
When making the credibility finding, the ALJ pointed to the absence of laboratory tests and brain biopsies normally used to evaluate Alzheimer's disease, that Plaintiff still drives, that Plaintiff uses a cane when the objective medical evidence does not establish the need for a cane, Plaintiff's drastically varied performance on psychological evaluations administered months apart, and a consultative examiner's impression that Plaintiff was putting forth " poor effort" during an examination. (See AR 20).
Taking into consideration these restrictions and the testimony of a vocational expert, the ALJ determined that Plaintiff was capable of performing past relevant work as a dining room attendant and jack strip assembler, as those jobs are generally performed in the national economy. (AR 20-21). Consequently, the ALJ concluded that Plaintiff was not disabled, and thus, not entitled to benefits. (AR 21).
III. ISSUE PRESENTED
Whether the ALJ's determination that Plaintiff could perform past relevant work as a dining room attendant and jack strip assembler is supported by substantial evidence in the record. (Plaintiff's Memorandum in Support of Complaint (" Pl's. Compl.") 3).
IV. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. A court must affirm an ALJ's findings of fact if they are supported by substantial evidence and if the proper legal standard was applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). Substantial evidence is more than a mere scintilla but less than a preponderance. Id. at 459. Substantial evidence is " relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). To determine whether substantial evidence supports a finding, a court must " consider the record as a whole, weighing both evidence that supports and detracts from the [ALJ's] conclusion." Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).
A court must uphold the ALJ's conclusion even if the evidence in the record is susceptible to more than one rational interpretation. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (citing Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995)); see Mayes, 276 F.3d at 459. If the evidence can reasonably support either affirming or reversing the ALJ's decision, " the court may not substitute its judgment for that of the ALJ." Aukland, 257 F.3d at 1035 (citation omitted). The court has the authority to affirm, modify, or reverse the ALJ's decision " with or without remanding the cause for rehearing." 42 U.S.C. § 405(g). Remand is appropriate where additional proceedings would remedy the defects in the ALJ's decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989).
IV. DISCUSSION
A. Pertinent Law
The Social Security statute and implementing regulations establish a five-step sequential process to evaluate disability claims. 20 C.F.R. § 404.1520 (a)-(f); Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). At step four, the inquiry is whether the claimant can perform past relevant work " either as actually performed or as generally performed in the national economy." Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008). The ALJ may use a vocational expert (" VE") to assist in the determination. See 20 C.F.R. § 404.1560(b)(2).
The claimant has the burden to show that he cannot perform his past relevant work. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). However, the ALJ " has a duty to make the requisite factual findings to support his conclusion." Id.; Carmickle, 533 F.3d at 1166. An ALJ's determination that the claimant has the RFC to perform his past relevant work must contain a finding of fact that the individual's RFC would permit a return to the position. Social Security Ruling 82-62, 1982 WL 31386, at *4; see 20 C.F.R. § 404.1520(f).
The ALJ first assesses a claimant's RFC, defined as the most that a claimant can do despite physical and mental limitations caused by his impairments and related symptoms. 20 C.F.R. § 416.945. The ALJ is " required to consider all of the limitations imposed by the claimant's impairments, even those that are not severe." Carmickle, 533 F.3d at 1164. As with the other steps of the sequential analysis, the ALJ properly considers the medical opinions of the claimant's treating physicians, examining physicians, and non-examining physicians. Generally, the greatest weight is accorded to the claimant's treating physician, because the treating physician has the most contact and a better opportunity to know and observe the claimant as an individual. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). " [I]f the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing 'specific and legitimate' reasons supported by substantial evidence in the record for so doing." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
B. Analysis
At step four of the sequential analysis, the ALJ concluded that Plaintiff could perform past relevant work as a dining room attendant and jack strip assembler. (AR 20-21). Plaintiff contends that this determination is not supported by substantial evidence in the record. (Pl's. Compl. 3-12). It is not supported, Plaintiff argues, because the ALJ failed to give proper weight to the opinion of his treating physician regarding Plaintiff's Alzheimer's disease. (Id. at 5-8). The Court agrees.
Plaintiff also argues that the ALJ failed to properly evaluate his subjective complaints. (Pl's. Compl. 3). Specifically, he argues that " the ALJ failed to articulate sufficient reasons to find [Plaintiff] not credible." (Id. at 9). This argument is without merit. The ALJ specifically articulated numerous reasons for her adverse credibility determination, including Plaintiff's daily activities, contradictory testimony, poor effort during a consultative examination, and presentation at the administrative hearing. (AR 19-20). These are legitimate factors that support the ALJ's credibility determination. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Moreover, the ALJ did not entirely reject Plaintiff's testimony, but found him " not entirely credible." (AR 19). Because the ALJ made specific findings stating clear reasons for her determination, the Court " may not second-guess it." Rodriguez v. Astrue, 279 Fed.App'x 512, 513 (9th Cir. 2008).
In assessing Plaintiff's RFC, the ALJ considered the opinion evidence of Plaintiff's treating physician, Dr. Selvaraj; two consultative physicians, Dr. Rathana-Nakintara and Dr. Donohue; and State agency medical and psychological consultants. (AR 17-20). The ALJ explained how she weighted these opinions in the RFC assessment as follows:
As for the opinion evidence, the undersigned gives great weight to the State agency medical and psychological consultants' opinions as well as Drs. Rathana-Nakintara's and Donohue's opinions and no weight to Dr. Selvaraj's opinion. The claimant responds well to psychiatric medication prescribed by a family physician. His osteoarthritis, hernia, and diabetes, though severe, are controlled with medications. Recent physical examinations are mostly normal. As discussed, Alzheimer's disease is not a medically determinable impairment even though the claimant alleges it. His and his wife's statements as well as the consultative examinations establish inconsistencies in the claimant's alleged symptoms and limitations. Thus, there is little support for Dr. Selvaraj's disability statement. A residual functional capacity for a full range of medium work is appropriate.
(AR 20) (emphasis added).
An ALJ may accord no weight to a treating physician's opinion if that opinion is conclusory or not supported by medical evidence. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Here, the ALJ concluded that Dr. Selvaraj's opinion was not supported by medical evidence and contradicted by the opinions of the consultative examiners. Specifically, the ALJ noted that Dr. Rathana-Nakintara found Plaintiff to be cooperative and competent during a mental status examination, but five months later Dr. Donohue found Plaintiff to be making an " exaggerated effort to look poor" during a mental status examination. (AR 18-20). Both Dr. Rathana-Nakintara and Dr. Donohue opined that Plaintiff did not have Alzheimer's disease. (AR 18-19). Dr. Donohue based her opinion in part on the " absence of laboratory tests and brain biopsies normally used to evaluate [Alzheimer's]." (AR 20).
Contrary to the ALJ's decision, there is medical evidence in the record supporting Dr. Selvaraj's opinion. Beginning in December 2011, Dr. Selvaraj made numerous health assessments of Plaintiff's conditions, including his liver function, back and joint pain, and memory loss and confusion. (AR 345-347, 353). In early 2012, Dr. Selvaraj administered a Mini-Mental State Examination and found Plaintiff's results consistent with Alzheimer's. (AR 349-351). Over the course of their nearly year-long treatment relationship, Dr. Selvaraj recorded Plaintiff's repeated complaints of memory loss and confusion and positive response to Donepezil, a medication he prescribed to treat Plaintiff's Alzheimer's. (AR 36, 346-347, 353, 368, 377). The length and frequency of a treating physician's experience with a patient is an important factor in determining what weight to accord that physician's opinion. See 20 C.F.R. § 404.1527(d)(2); see also Carmickle, 533 F.3d at 1164 (physicians with the most significant clinical relationship with the claimant are generally entitled to more weight than those physicians with lesser relationships). Finally, Plaintiff's wife testified that his memory loss was his worst problem among his impairments. (AR 54).
Alzheimer's is a progressive and episodic disease. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) at 611-614. As such, Plaintiff's poorer mental health examination performance five months after a previous examination and varied display of symptoms to different examiners at different times is not inherently inconsistent with a diagnosis of Alzheimer's. Moreover, the consultative examiners, both of whom the ALJ accorded great weight, both recorded observations not inconsistent with Alzheimer's. Dr. Rathana-Nakintara observed poor memory testing and noted a family psychiatric history " significant for an unspecified psychological problem." (AR 389, 390.) Dr. Donohue also noted Plaintiff's memory problems and confusion, but attributed them to hepatic encephalopathy instead of Alzheimer's disease. (AR 365). It was error for the ALJ to give no weight to Plaintiff's treating physician on the basis that there was no medical evidence supporting his opinion.
The Commissioner argues that any error was harmless because " Plaintiff does not explain how his alleged Alzheimer's would preclude the performance of his past relevant work." (Defendant's Memorandum in Support of Answer 2). However, the VE testified to this very point at the hearing:
Q And if we take the third hypothetical, which is basically medium work, but the person due to memory loss, memory issues, would be off task 20 percent of the time, would they be able to perform any past relevant work or any other jobs?
A No, he would not.
(AR 50). Because the ALJ did not give proper weight to the opinion of Plaintiff's treating physician, her decision is not supported by substantial evidence.
IV. CONCLUSION
For the foregoing reasons, the decision of the Commissioner that Plaintiff is not disabled and therefore is not entitled to benefits is REVERSED and this action is REMANDED for further proceedings in accordance with this decision.
JUDGMENT OF REMAND
In accordance with the Memorandum Opinion and Order filed concurrently herewith, IT IS ORDERED AND ADJUDGED that the decision of the Commissioner of Social Security is reversed and the matter is remanded to the Commissioner for further proceedings consistent with the Memorandum Opinion.