Opinion
No. CV-07-297-CI.
October 10, 2008
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS PURSUANT TO SENTENCE FOUR 42 U.S.C. § 405(g).
BEFORE THE COURT are cross-Motions for Summary Judgment. (Ct. Rec. 17, 20.) Attorney Maureen j. Rosette represents Plaintiff; Special Assistant United States Attorney L. Jamala Edwards represents Defendant. The parties have consented to proceed before a magistrate judge. (Ct. Rec. 8.) After reviewing the administrative record and the briefs filed by the parties, the court GRANTS Plaintiff's Motion for Summary Judgment and remands the matter to the Commissioner for additional proceedings pursuant to sentence four of 42 U.S.C. 405(g).
Plaintiff applied for Supplemental Security Income (SSI) on September 5, 2003. (Tr. 53-59.) She alleges disability due to depression, arthritis and fibromyalgia with an onset date of December 1999. (Tr. 69.) Following a denial of benefits at the initial stage and on reconsideration, a hearing was held before Administrative Law Judge (ALJ) Paul Gaughen on January 30, 2007. (Tr. 314-50.) On February 21, 2007, ALJ Gaughen denied benefits; review was denied by the Appeals Council. (Tr. 6-8, 10-23.) This appeal followed. Jurisdiction is appropriate pursuant to 42 U.S.C. § 405(g).
STANDARD OF REVIEW
In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the standard of review:
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).
SEQUENTIAL PROCESS
Also in Edlund, 253 F.3d at 1156-1157, the court set out the requirements necessary to establish disability:
Under the Social Security Act, individuals who are "under a disability" are eligible to receive benefits. 42 U.S.C. § 423(a)(1)(D). A "disability" is defined as "any medically determinable physical or mental impairment" which prevents one from engaging "in any substantial gainful activity" and is expected to result in death or last "for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Such an impairment must result from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). The Act also provides that a claimant will be eligible for benefits only if his impairments "are of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . ." 42 U.S.C. § 423(d)(2)(A). Thus, the definition of disability consists of both medical and vocational components.
In evaluating whether a claimant suffers from a disability, an ALJ must apply a five-step sequential inquiry addressing both components of the definition, until a question is answered affirmatively or negatively in such a way that an ultimate determination can be made. 20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f). "The claimant bears the burden of proving that [s]he is disabled." Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). This requires the presentation of "complete and detailed objective medical reports of h[is] condition from licensed medical professionals." Id. (citing 20 C.F.R. §§ 404.1512(a)-(b), 404.1513(d)).
STATEMENT OF FACTS
The facts of the case are set forth in detail in the transcript of proceedings, and are briefly summarized here. Plaintiff was 57 years old at the time of the administrative hearing. (Tr. 328.) She completed 10th grade and completed her high-school equivalency degree. She went to college in the 1980's and graduated with a degree in anthropology from the University of Montana. (Tr. 330-31.) She testified she was married, but separated from her spouse. She has six adult children and helped raise her teenage grandchildren. (Tr. 329, 335.) She testified she is supported by her daughter, and her children and grandchildren assist her with daily chores. (Tr. 335, 341.) Plaintiff had past work experience as a receiving clerk in a department store, a potato sorter and babysitter. (Tr. 70, 345.) She testified she was in an automobile accident that caused injury to her knees and now she has arthritis in her knees, hips, shoulders, tailbone and ankles. (Tr. 336.) She stated she could pick up 10 pounds, but could not hold on to it, could only sit for 45 minutes to an hour at a time, walk 10 blocks, and stand for a half hour. She reported she could not bend or squat because of her knees. (Tr. 338-39.) She also testified she suffered from depression for which she had been taking Prozac with little relief. She stated she had been taking Prozac since it came out. (Tr. 340.) She reported her depression affected her ability to concentrate and her memory and she could not sustain work. (Tr. 340-41.)ADMINISTRATIVE DECISION
The ALJ found Plaintiff had not engaged in substantial gainful activity. At step two, he found Plaintiff has no medically determinable severe impairments, and "does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months; therefore the claimant does not have a severe impairment or combination of impairments ( 20 C.F.R. 416.921)." (Tr. 15.) After a lengthy discussion of the medical evidence, Plaintiff's testimony, and medical expert testimony, the ALJ found Plaintiff was not credible, and her subjective symptom complaints were not sufficient to establish a severe impairment. (Tr. 21.) He concluded she was not "disabled" as defined by the Social Security Act through the date of the decision. (Tr. 23.)
ISSUES
The question presented is whether there was substantial evidence to support the ALJ's decision denying benefits and, if so, whether that decision was based on proper legal standards. Plaintiff contends the ALJ erred when he found (1) she had no severe impairment; and (2) improperly rejected treating and examining physician opinions; and (3) improperly relied on medical expert testimony. (Ct. Rec. 18 at 11, 12, 15.)DISCUSSION
Plaintiff contends the medical evidence submitted regarding her mental and physical impairments is sufficient to satisfy the " de minimis" threshold at step two. She argues the ALJ's erroneous rejection of medical source opinions rendered the ALJ's reliance on medical expert testimony reversible error.
A. Medically Determinable Impairments
To satisfy step two's requirement of a severe impairment, the claimant must prove the existence of a physical or mental impairment by providing medical evidence consisting of signs, symptoms, and laboratory findings; the claimant's own statement of symptoms alone will not suffice. 20 C.F.R. § 416.908. The effects of all symptoms must be evaluated on the basis of a medically determinable impairment which can be shown to be the cause of the symptoms. 20 C.F.R. §§ 404.1529, 416.929. Once medical evidence of an underlying impairment has been shown, medical findings are not required to support the alleged severity of pain or symptoms. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). However, an overly stringent application of the severity requirement violates the statute by denying benefits to claimants who do meet the statutory definition of disabled. Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994). Thus, the Commissioner has passed regulations which guide dismissal of claims at step two. Those regulations state an impairment may be found to be "non-severe" only when evidence establishes a "slight abnormality" that has "no more than a minimal effect on an individual's ability to work." Id. (citing Social Security Ruling (SSR) 85-28).
The ALJ must consider the combined effect of a claimant's impairments, severe and non-severe, on the ability to function, without regard to whether each alone is sufficiently severe. See 42 U.S.C. § 423(d)(2)(B) (Supp. III 1991). It is noted on independent review that the ALJ failed to make findings regarding Plaintiff's medically determinable non-severe impairments. (Tr. 15, Finding of Fact 2.) The combined effect of all medically determinable physical and mental impairments should be considered at step three and four. 20 C.F.R. § 416.926(a)(c); § 416.945(a)(2). The failure to do so is legal error requiring remand. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Further, the ALJ's finding that "claimant's medically determinable impairment could reasonably be expected to produce the alleged symptoms," when discussing Plaintiff's credibility, is inconsistent with a finding of "no impairment." (Tr. 17.)
B. Severe Impairments
The step two inquiry is a de minimis screening device to dispose of groundless or frivolous claims. Bowen v. Yuckert, 482 U.S. 137, 153-154 (1987). The adjudicator's role at step two is further explained by SSR 85-28:
A determination that an impairment(s) is not severe requires a careful evaluation of the medical findings which describe the impairment(s) and an informed judgment about its (their) limiting effects on the individual's physical and mental ability(ies) to perform basic work activities; thus, an assessment of function is inherent in the medical evaluation process itself. At the second step of sequential evaluation, then, medical evidence alone is evaluated in order to assess the effects of the impairment(s) on ability to do basic work activities.
. . .
If . . . evidence shows that the person cannot perform his or her past relevant work because of the unique features of that work, a denial at the "not severe" step of the sequential evaluation process is inappropriate. The inability to perform past relevant work in such instances warrants further evaluation of the individual's ability to do other work considering age, education and work experience.SSR 85-28. The regulations advise the adjudicator that "[g]reat care should be exercised in applying the not severe impairment concept." Id.
In determining whether a claimant has a severe impairment the ALJ must evaluate the medical evidence submitted and explain the weight given to the opinions of accepted medical sources in the record. The regulations distinguish among the opinions of three types of accepted medical sources: (1) sources who have treated the claimant; (2) sources who have examined the claimant; and (3) sources who have neither examined nor treated the claimant, but express their opinion based upon a review of the claimant's medical records. 20 C.F.R. § 416.927. A treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a non-examining reviewing or consulting physician's opinion. Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. "As is the case with the opinion of a treating physician, the Commissioner must provide `clear and convincing' reasons for rejecting the uncontradicted opinion of an examining physician." Lester, 81 F.3d at 830 (citation omitted). If the opinion is contradicted, it can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record. Andrews, 53 F.3d at 1043. The testimony of a non-examining medical expert by itself cannot be considered substantial evidence that supports the rejection of an examining physician. Lester, 81 F.3d at 831.
Here, Plaintiff submitted psychological evaluations from examining psychologists Deborah Brown, Ph.D., Joyce Everhart, Ph.D., and John Severinghaus, Ph.D. In June 2003, Dr. Brown administered a mini-mental status exam (within normal limits), Trails A and B (within normal limits), a Rey test for malingering, (no malingering exhibited) and a Personality Assessment Index, which showed a "mild exaggeration of symptoms." (Tr. 202.) Dr. Brown diagnosed recurrent major depression and noted Plaintiff "described symptoms of a Borderline Personality Disorder." (Tr. 203.) Dr. Brown also noted Plaintiff's anti-depressant medication did not appear to help her, and suggested adjustments in Plaintiff's medication regime. ( Id.)
In April 2004, Dr. Everhart administered Trails A and B, the Weschler Memory Scale, and the Hamilton Rating Scale for Depression, which indicated "Severe Depression." Testing revealed no affirmative evidence of malingering. (Tr. 139-41.) Dr. Everhart diagnosed depressive disorder, NOS, and personality disorder, NOS. (Tr. 141.) She reported Plaintiff had a good memory, could relate to people, had attention, pace and concentration were within normal limits, but her persistence was compromised by psychological and physical symptoms. (Tr. 142.)
In November 2006, Dr. Severinghaus administered the following objective tests: MMPI-2 (suggests overemphasis of pathology); Test of Memory Malingering (TOMM) ("suggestive" of malingering); Trails A and B (within normal limits); and the Weschler Memory Scale III (within normal limits). (Tr. 211.) He opined she had chronic depressed feelings to a moderate level, and "even if she started counseling again, the likelihood of improvement in her functioning is fairly low." (Tr. 212.) He formally diagnosed dysthmia disorder, NOS; anxiety disorder, NOS; pain disorder; possible malingering; and personality disorder. (Tr. 211.) Noting that "depression and anxiety are primary factors here," Dr. Severinghaus assessed marked restrictions in Plaintiff's ability to interact with the public, with supervisors, with co-workers and in her ability to respond appropriately to work pressures in a normal work setting. (Tr. 216.) Consistent with Dr. Everhart's evaluation, he opined her "pace and persistence" were reduced by her depression. (Tr. 141, 208.) All three psychologists noted Plaintiff was being treated with medication, had been hospitalized for psychiatric problems and had been in counseling. (Tr. 137, 201, 209, 288.)
At the hearing, medical expert Robert Klein, M.D., reviewed the medical evidence and concluded that Plaintiff's mental conditions caused no impairment of activities of daily living, no more than mild limitations in Plaintiff's social functioning, no limitation in concentration, persistence and pace, and no episodes of decompensation. (Tr. 318-19.) These opinions conflict with Dr. Brown's and Dr. Severinghaus' findings and are supported only with the conclusions of a non-examining psychologist. (Tr. 143.) The ALJ's rejection of the examining psychologists' diagnoses and opinions on the basis of Dr. Klein's testimony is not supported by substantial evidence. Lester, 81 F.3d at 831; Magallanes v. Bowen, 881 F.2d 747, 751-52 (9th Cir. 1989).
At step two, the ALJ also reasoned that "the claimant's complaints of pain and limitations are insufficient to establish a severe impairment." (Tr. 21.) However, medical evidence alone is evaluated at step two to assess the effects of impairment(s). The objective medical evidence confirms depression and personality disorder are "bona fide problems." SSR 85-28. (Tr. 208.) Further, Plaintiff's subjective complaints are consistent with the diagnosis of depression and personality disorder. Therefore, these mental conditions are not "groundless under the de minimis standard of step two." Webb, 433 F.3d at 688. For step two purposes, the Plaintiff met her burden of providing objective medical evidence consisting of signs, symptoms, and laboratory findings of mental disorders, as well as medical records documenting the ongoing treatment with medication. 20 C.F.R. § 416.926; Webb, 433 F.3d at 687. This evidence establishes more than "slight abnormality" in Plaintiff's mental condition. Remand is necessary for new step two findings and to continue the sequential evaluation process. On remand, the ALJ shall assess limitations based on all medically determinable severe and non severe impairments.
The ALJ appears to rely on Dr. Severinghaus' report in finding Plaintiff's subjective complaints were "not credible." (Tr. 22.) Contrary to the ALJ's finding that the TOMM results "confirmed malingering," Dr. Severinghaus opined that the TOMM results were "suggestive" of malingering. (Tr. 20, 211.) Further, Dr. Severinghaus stated there was no evidence of malingering in the Weschler testing results, and diagnosed "possible malingering," along with several mental disorders. (Tr. 211.) The ALJ's findings of "malingering" are not supported by substantial evidence sufficient to reject all objective medical evidence from examining medical sources at step two. See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005).
C. Obesity
The ALJ also failed to factor in Plaintiff's documented obesity in combination with arthritis, as diagnosed by Dr. Roy Brown, and Plaintiff's diagnosed depression. (Tr. 132, 160, 196.) While obesity has been eliminated as a Listing, it can constitute the equivalence of a Listing. Social Security Ruling 02-01p addresses the significance of obesity in the sequential evaluation process. The current prefaces to the musculoskeletal, respiratory and cardiovascular body system Listings provide guidance about the potential effects obesity has in causing or contributing to impairments in those body systems. See, e.g., 20 C.F.R. Part 404, Subpt. P, App. 1, Section 1.00Q. In addition, according to the Commissioner, "obesity may cause or contribute to mental impairments such as depression." SSR 02-01p. The Ruling recognizes that obesity will constitute a severe impairment when "it significantly limits an individual's physical or mental ability to do basic work activities." SSR 02-01p.
Records from treating physician E. Quick, M.D., indicate a diagnosis of obesity. (Tr. 132.) As discussed in the Commissioner's policy rulings:
When establishing the existence of obesity, we will generally rely on the judgment of a physician who has examined the claimant and reported his or her appearance and build, as well as weight and height. Thus, in the absence of evidence to the contrary in the case record, we will accept a diagnosis of obesity given by a treating source or by a consultative examiner. However, if there is evidence that indicates that the diagnosis is questionable and the evidence is inadequate to determine whether or not the individual is disabled, we will contact the source for clarification, using the guidelines in 20 CFR 404.1512(e) and 416.912(e).SSR 02-01p (How Is Obesity Identified as a Medically Determinable Impairment?).
Additionally, obesity must be considered at step four of the process because it can cause postural limitations of function. An assessment should be made of the effect obesity has upon the individual's ability to perform routine movement and necessary physical activity within the work environment. Id. Here the ALJ did not adequately consider Plaintiff's obesity at any step of the sequential process. A failure to consider obesity is reversible error.
D. Remedy
Because a step two determination that an impairment is severe "only raises a prima facie case of a disability," Plaintiff may not succeed in proving she is "disabled" (as defined by the Social Security Act) at step two. The full five step sequential evaluation is necessary to ascertain whether there are jobs Plaintiff can perform. Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) ( citing Tackett, 180 F.3d at 1100). As stated by the Hoopai court,
[T]he satisfaction of the step-two threshold requirement that a claimant prove her limitations are severe is not dispositive of the step five determination of whether the non-exertional limitations are sufficiently severe such as to invalidate the ALJ's exclusive use of the [Medical-Vocational Guidelines] without the assistance of a vocational expert.Id. at 1078.
Conversely, a reasonable ALJ may find Plaintiff "disabled" upon consideration throughout the sequential evaluation process of all limitations caused by medically determinable impairments (severe and non-severe) in combination (as required by 20 C.F.R. §§ 404.1523, 416.923). Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). Because Plaintiff is prejudiced by the improper exclusion of all diagnosed impairments, physical and mental, as well as obesity, remand for further proceedings is appropriate. Id. at 1057. On remand, additional medical evidence may be submitted, including imaging, additional consultive psychological examinations and, if available, treatment records. Accordingly,
Plaintiff contends the Medical Vocational Guidelines would dictate a finding of "disabled" if Plaintiff were found limited to sedentary work with non-transferrable skills. 20 C.F.R. Part 404, Subp. P, App. 2, Table 1. (Tr. 290.)
IT IS ORDERED:
1. Plaintiff's Motion for Summary Judgment (Ct. Rec. 17) is GRANTED. The matter is remanded to the Commissioner for additional proceedings pursuant to 42 § U.S.C. 405(g) and the decision above.
2. Defendant's Motion for Summary Judgment dismissal (Ct. Rec. 20) is DENIED.
3. Application for attorney fees may be made by separate motion.
The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant. The file shall be CLOSED and judgment entered for Plaintiff.