Opinion
NO. SA CV 09-379-E.
August 24, 2009
MEMORANDUM OPINION AND ORDER OF REMAND
Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.
PROCEEDINGS
Plaintiff filed a complaint on March 27, 2009, seeking review of the Commissioner's denial of benefits. Both parties consented to proceed before a United States Magistrate Judge. Plaintiff filed a motion for summary judgment on July 13, 2009. Defendant filed a motion for summary judgment on August 10, 2009. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed March 31, 2009.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff asserts disability since March 2, 2006, based on,inter alia, alleged mental impairments (Administrative Record ("A.R.") 97, 498-505). Plaintiff's treating psychiatrist opined Plaintiff has a mood disorder of disabling severity (A.R. 498-505). The Administrative Law Judge ("ALJ") rejected this opinion and found Plaintiff has no severe mental impairment (A.R. 24-35). As part of the rationale for rejecting the treating psychiatrist's opinion, the ALJ stated that "the progress notes [from Plaintiff's mental health treatment] fail to support significant symptoms of a mood disorder" (A.R. 28). The copies of the progress reports appearing in the Administrative Record are partially illegible (A.R. 457-65). The Appeals Council denied review (A.R. 1-4).
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008);Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). 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) (citation and quotations omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).
DISCUSSION
Social Security Ruling ("SSR") 85-28 governs the evaluation of whether an alleged impairment is "severe":
Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n. 1 (9th Cir. 1990).
An impairment or combination of impairments is found `not severe' . . . when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work . . . i.e., the person's impairment(s) has no more than a minimal effect on his or her physical or mental ability(ies) to perform basic work activities . . .
Great care should be exercised in applying the not severe impairment concept. If an adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual's ability to do basic work activities, the sequential evaluation process should not end with the not severe evaluation step.
If such a finding [of non-severity] is not clearly established by medical evidence, however, adjudication must continue through the sequential evaluation process. SSR 85-28 at 22-23.See also Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (the severity concept is "a de minimis screening device to dispose of groundless claims").
In the present case, the medical evidence does not "clearly establish []" the non-severity of Plaintiff's alleged mental problems. Plaintiff has received therapy and medication for her alleged mental problems. Her treating psychiatrist, who believes the problems to be disabling, also believes Plaintiff has experienced these problems since December of 2006 (A.R. 498-505). According to the treating psychiatrist, the prognosis is "guarded" (A.R. 498). The record contains conflicting evidence, but the conflicts in the evidence do not "clearly establish" the non-severity of Plaintiff's alleged mental problems. Accordingly, the Administration's decision violated SSR 85-28 and the Ninth Circuit authorities cited above.
The respect ordinarily owed to treating physicians' opinions buttresses the Court's conclusion that the ALJ erred. Treating physicians' opinions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ("the ALJ must give sufficient weight to the subjective aspects of a doctor's opinion . . . This is especially true when the opinion is that of a treating physician") (citation omitted). Even where the treating physician's opinions are contradicted, "if the ALJ wishes to disregard the opinion[s] of the treating physician he . . . must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); see Rodriquez v. Bowen, 876 F.2d at 762 ("The ALJ may disregard the treating physician's opinion, but only by setting forth specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence") (citation and quotations omitted); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) ("broad and vague" reasons for rejecting the treating physician's opinions do not suffice).
Rejection of an uncontradicted opinion of a treating physician requires a statement of "clear and convincing" reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984).
Section 404.1512(e) of 20 C.F.R. provides that the Administration "will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all of the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) ("If the ALJ thought he needed to know the basis of Dr. Hoeflich's opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry, for example, by subpoenaing the physicians or submitting further questions to them. He could also have continued the hearing to augment the record") (citations omitted); see also Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) ("the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered").
In the present case, the ALJ rejected the treating physician's opinion, at least in part, based on a finding that "the progress notes fail to support significant symptoms of a mood disorder" (A.R. 28). The Court is unable to evaluate whether this finding constitutes a legitimate reason for rejecting the opinion of the treating physician because the progress notes in the Administrative Record are partially illegible. The Court cannot affirm an administrative decision where, as here, material portions of the Administrative Record are illegible. See Brissett v. Heckler, 730 F.2d 548, 550 (8th Cir. 1984).
When a court reverses an administrative determination, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." INS v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); see generally Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984).
The Ninth Circuit's decision in Harman v. Apfel, 211 F.3d 1172 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ("Harman") does not compel a reversal rather than a remand of the present case. In Harman, the Ninth Circuit stated that improperly rejected medical opinion evidence should be credited and an immediate award of benefits directed where "(1) the ALJ has failed to provide legally sufficient reasons for rejecting such 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." Harman at 1178 (citations and quotations omitted). Assuming, arguendo, the Harman holding survives the Supreme Court's decision in INS v. Ventura, 537 U.S. 12, 16 (2002), the Harman holding does not direct reversal of the present case. Here, there are "outstanding issues that must be resolved before a determination of disability can be made." Further, it is not clear from the record that the ALJ would be required to find Plaintiff disabled for the entire claimed period of disability were the opinions of the treating physician credited.
The Ninth Circuit has continued to apply Harman despite INS v. Ventura. See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004).
CONCLUSION
For all of the foregoing reasons, Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.LET JUDGMENT BE ENTERED ACCORDINGLY.