Opinion
Case No. 3:16-cv-00079-JD
03-31-2017
VIRGIL L. LEONARD, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER RE SUMMARY JUDGMENT
Re: Dkt. Nos. 14, 21
Plaintiff Virgil L. Leonard challenges a decision by a Social Security Administration Administrative Law Judge that denied him supplemental security income benefits under Title XVI of the Social Security Act. Dkt. No. 14. The Commissioner of Social Security ("Commissioner") filed a cross-motion for summary judgment to uphold the ALJ's determination. Dkt. No. 21. Leonard's motion is granted in part and the case is remanded to the Social Security Administration for further proceedings consistent with this order.
In a decision dated August 14, 2014, the ALJ found that Leonard suffers from "polysubstance (marijuana and alcohol) abuse," "antisocial personality disorder," "bipolar disorder," and a number of knee and back injuries. AR at 97. The ALJ concluded that Leonard has the residual functional capacity ("RFC") to perform a subset of "medium work" including the following limitations, among others: "[h]e can understand, remember and perform simple, routine tasks, adapt to changes in a routine that are introduced slowly, with no work involving high production, and maintain attention and concentration for 2-hour increments with a 5-minute break. He is limited to occasional interaction with supervisors and co-workers. He cannot have public contact." Id. at 98-99. Consequently, the ALJ determined -- taking into account the testimony of a vocational expert -- that Leonard is capable of performing some jobs that exist in significant numbers in the national economy. Id. at 104.
In our circuit, an ALJ's decision to deny benefits "will only be disturbed if it is not supported by substantial evidence or it is based on legal error" and the "decision of the ALJ will not be reversed for errors that are harmless." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation omitted). But the ALJ's decision in this case suffers from legal error that is not harmless.
In determining Leonard's mental RFC, the ALJ erred by failing to provide specific and legitimate reasons, supported by substantial evidence in the record, for according more weight to the opinion of Dr. Davis, who never examined Leonard, than to the opinion of Dr. Loda, who treated Leonard. AR at 102. Cases in our circuit distinguish among the opinions of three types of physicians: (1) treating physicians; (2) examining physicians; and (3) nonexamining physicians. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). As a general rule, more weight is given to the opinion of a treating physician than to that of an examining physician, and in turn more weight is given to the opinion of an examining physician than to that of a nonexamining physician. Id. Even where, as here, a treating or examining physician's opinion is contradicted by another doctor, the Commissioner may not reject the treating or examining physician's opinion without providing "specific and legitimate reasons" supported by substantial evidence in the record for doing so. Id. The ALJ can meet that burden by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (internal quotation omitted). The opinion of a nonexamining physician cannot by itself constitute substantial evidence, Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995), though an examining physician's "independent clinical findings" can, Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).
In determining Leonard's mental RFC, the ALJ failed to provide specific reasons for relying primarily on, and according "great weight" to, the opinion or Dr. Davis. AR at 102. Without ever examining Leonard, Dr. Davis determined that Leonard could interact appropriately with supervisors and could perform work in at least some environments. Id. at 88. Adopting this opinion, the ALJ's decision remarked in boilerplate language that Dr. Davis' opinion was "consistent with the preponderance of the longitudinal mental medical evidence of record," and then proceeded to reject the opinion of Dr. Loda (and that of an examining physician, Dr. Arpaci). Id. at 102. The ALJ's decision provided no examples of how Dr. Davis' opinion is consistent with the record. Nor did it identify any independent clinical findings Dr. Davis may have relied on, instead only summarizing Dr. Davis' conclusions. Id. at 100-01.
The ALJ's rejection of Dr. Loda's opinion that Leonard would not "succeed in a competitive work environment" was also remarkably terse. Id. at 757. It ran just three sentences: "[t]he same can be said for the opinion of Dr. Loda. Dr. Loda appears to have only seen the claimant for a very short period of time and on very limited occasions prior to issuing her opinion. In addition, her own colleague Dr. Hong noted he believed the claimant could work in a certain environment." Id. at 102. Even combined with Dr. Davis' opinion, these reasons are neither specific nor substantive enough to provide a sound basis for the ALJ's rejection of Dr. Loda's opinions. See Lester, 81 F.3d at 830; see also Mattson v. Colvin, 537 F. App'x 699, 700 (9th Cir. 2013). While it is true that the length, nature, and extent of a treating physician's relationship with a claimant can be relevant to the weight the physician's opinion should be accorded, 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii), the opinions of treating physicians who have seen their patient twice, like Dr. Loda here, are nevertheless accorded deference and "substantial weight." Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir. 1994). Moreover, by referring to Leonard's treatment history at Contra Costa Health Services, Dr. Loda's letter reveals that she had access to Leonard's medical records from at least six visits dating back to late 2012, and clearly relied on those records -- in addition to her own subjective observations based on her clinical sessions with Leonard -- in formulating her opinions and ultimate conclusion. AR at 691-712, 757. And the ALJ's incorrect assertion that Dr. Loda's March 13, 2014, letter was "undated" at least suggests that insufficient weight was accorded to it. Id. at 101.
The ALJ also failed to provide any specific reason for relying on Dr. Hong's remark that Leonard "could work in the right environment," id. at 696, to reject Dr. Loda's medical conclusion that Leonard could not succeed in a competitive work environment, id. at 757. And contrary to the Commissioner's contention, the ALJ did not clearly cite reliance on Leonard's subjective self-reporting as a basis for rejecting Dr. Loda's opinion. Id. at 102. That was a stated basis for rejecting Dr. Arpaci's opinion, but the most plausible reading of the ALJ's rejection of Dr. Loda's opinion is that it was based only on (1) the limited nature of Dr. Loda's relationship with Leonard, and (2) Dr. Hong's remark in his Progress Note/Billing Form. Id.
This is not a case where the ALJ relied on an "abundance" of conflicting opinions from other mental health professionals, conflicting medical reports, and suspect psychological testing in deferring to the opinion of a nonexamining physician. Lester, 81 F.3d at 831 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)); see also Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989) (rejecting treating physician's opinion where contradicted by reports from at least four other examining physicians). Here, the ALJ cursorily rejected the opinions of both a treating and an examining physician, and instead adopted the opinion of a nonexamining physician because it was "consistent with the preponderance of the longitudinal mental medical evidence of record." AR at 102. In doing so, the ALJ failed to meet her burden of setting out a "detailed and thorough" summary of the facts and conflicting clinical evidence, "stating [her] interpretation thereof, and making findings." Thomas, 278 F.3d at 957.
This error was not harmless. The ALJ's determination that appropriate jobs for Leonard existed in the national economy hinged on an insufficiently supported rejection of Dr. Loda's conclusion that Leonard would not succeed in a competitive work environment. AR at 757. Because this alone is sufficient for remand, the Court declines to reach Leonard's other arguments of error in the ALJ's decision, including the argument that the ALJ's rejection of Dr. Arpaci's opinion was insufficiently supported.
Leonard asks that the Court credit as true the opinion of Dr. Loda and consequently award benefits. Dkt. No. 14 at 13. But because the record as a whole does not compel a finding of disability, and in fact raises "serious doubt" as to whether Leonard is actually disabled within the meaning of the Social Security Act, the appropriate remedy here is remand. Garrison, 759 F.3d at 1021; see also Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1107 (9th Cir. 2014). Consequently, the Court remands the case to the Social Security Administration for further proceedings to determine Leonard's eligibility for benefits in a manner consistent with this opinion.
IT IS SO ORDERED. Dated: March 31, 2017
/s/_________
JAMES DONATO
United States District Judge