Opinion
No. C 00-4788 MMC
December 4, 2002
Plaintiff David Siska ("Siska") brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claim for supplemental security income benefits under Title XVI of the Social Security Act ("the Act"). Before the Court are Siska's motion for summary judgment and the Commissioner's cross-motion for summary judgment. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having considered the papers submitted in support of and in opposition to the motions, the Court rules as follows.
Jo Anne Barnhart is substituted for her predecessor, Larry G. Massanari, as Commissioner. See Fed.R.Civ.P. 25(d)(1),
I. BACKGROUND
On November 30, 1990, Siska filed an application with the Social Security Administration ("SSA") for benefits, and was subsequently found disabled based on his addiction to drugs and alcohol. (Transcript Record ("Tr.") at 16.) On January 1, 1997, the SSA terminated Siska's benefits pursuant to 42 U.S.C. § 423(d)(2)(C). (Tr. at 16.)
On April 7, 1997, when he was 50 years old, Siska filed another application with the SSA, describing his disability as follows: "Hips need replacing; making it extremely painful if not making [it] nearly impossible to walk even very short distances, example: to the bathroom and back to bed; Bleeding Ulcer; Manic Depression; Arthritis; Liver Problems; No sex drive or activities." (Tr. at 74.) While the SSA was considering the application, Siska additionally stated that he was unable to work as a result of fibromyalgia, multiple joint pains, and problems with his shoulders and back. (Tr. at 48, 54.) The SSA denied his application initially and on reconsideration. (Id.) In denying reconsideration on December 10, 1997, the SSA found that Siska had become disabled in March 1997 but that he would recover sufficiently to be able to work within 12 months of that date. (Tr. at 54.) Siska then requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. at 58.) A hearing was held on September 28, 1998, at which time Siska, appearing with counsel, testified. (Tr. at 16.)
The SSA did not state the basis for its determination that Siska became disabled in March 1997.
On October, 29, 1998, the ALJ issued a decision, analyzing Siska's claim for benefits under the SSA's five-step sequential evaluation process. The ALJ found that although Siska had severe depression, he retained the residual functional capacity to perform unskilled work at all exertional levels and, thus, was not under a disability. (Tr. at 19-21.) Siska requested review of the ALJ's decision by the Appeals Council, and offered additional evidence. (Tr. at 8-12, 272-83.) After the Appeals Council denied Siska's request for review, (Tr. at 5-6), Siska filed the instant action for judicial review.
The Commissioner follows a five-step sequential evaluation process in assessing whether a claimant is disabled.
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is "disabled." McCartey v. Massanari, 298 F.3d 1072, 1074 n. 6 (9th Cir. 2002).
II. STANDARD OF REVIEW
The Commissioner's determination to deny disability benefits will not be disturbed if it is supported by substantial evidence and based on the application of correct legal standards. See Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). "Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court must consider the administrative record as a whole, and weigh both the evidence supporting and detracting from the ALJ's decision. See id. If the evidence is susceptible to more than one rational interpretation, the court will uphold the decision of the ALJ.See id.
III. DISCUSSION
In an administrative proceeding to determine whether a claimant is entitled to benefits, the claimant has the burden of proving disability within the meaning of the Act. See Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). Under the Act, a claimant is considered disabled when he becomes unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." See 42 U.S.C. § 423(d)(1)(A). Where the claimant establishes a prima facie case of disability by showing an inability to perform past relevant work, the burden shifts to the Commissioner to show that the claimant can engage in other types of substantial gainful work existing in the national economy. See Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).In his motion for summary judgment, Siska seeks an order reversing the decision and remanding the matter with directions to issue benefits or, in the alternative, to remand for further proceedings. Siska argues that the ALJ and/or the Appeals Council erred by (1) improperly rejecting the opinions of two examining physicians, a treating physician, and a treating psychological intern and (2) using the Medical-Vocational Guidelines ("the grids"), rather than testimony of a vocational expert, to determine that there exist a significant number of jobs in the national economy that Siska can perform.
A. Medical Evidence
Siska argues that the ALJ erred in not accepting the opinions of examining physicians Burton Brody, M.D. ("Dr. Brody"), and Richard Mark Patel, M.D. ("Dr. Patel"), and that the Appeals Council erred in not accepting the opinions of treating physician Samuel Chua, M.D. ("Dr. Chua") and treating psychological intern Lora Lee Cook ("Cook").
1. The ALJ's Decision
Siska argues that the ALJ did not give proper weight to the opinions of examining physicians Drs. Brody and Patel.
Where the opinion of an examining physician is contradicted by a non-examining physician, the ALJ may reject the opinion of an examining physician "only for specific and legitimate reasons that are supported by substantial evidence in the record." See Moore v. Commissioner, 278 F.3d 920, 924 (9th Cir. 2002) (quoting Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)).
a. Dr. Brody
Dr. Brody conducted an examination of Siska on June 4, 1997. As a result thereof, Dr. Brody formed the "impression" that Siska had "degenerative arthritis, particularly of the left hip." (See Tr. at 166.) With respect to a functional capacity assessment, Dr. Brody initially noted that such an assessment was "difficult to ascertain," but stated that a "reasonable clinical assessment" would be that Siska had no sitting limitations, could stand/walk for half an hour two or three times daily with or without use of a cane, could lift or carry 10 pounds and had "some probable limitations in some motions such as stooping, crawling, and squatting." (See Id.)
Dr. Brody, an internist, examined Siska at the request of a state agency. (See Tr. at 17, 166.)
The ALJ rejected Dr. Brody's assessment, and instead relied on the opinion of Murray Krelstein, M.D. ("Dr. Krelstein"), a non-examining, consulting physician, that Siska could perform "competitive simple repetitive tasks." (See Tr. at 17, 204.) The ALJ gave two reasons for rejecting Dr. Brody's assessment: first, that the assessment was not supported by any objective findings and, second, that the assessment appeared to be based on "statements and presentations" by Siska, whom the ALJ did not find credible. (See Id.) Both of these reasons are specific and legitimate, and supported by substantial evidence. As to the first reason, the ALJ noted that Dr. Brody's own report acknowledges that Siska's claim of arthritis in his left hip was "not confirmed by x-ray." (See Tr. at 17, 166.) As to the second, the ALJ concluded that Siska was not credible because he gave markedly different answers to his physicians and to the ALJ when asked when he had last used alcohol and drugs, and because there was no objective evidence to support Siska's claim that he cannot stand or walk and must use a wheelchair, a claim Siska made "very shortly after his termination from benefits." (See Tr. at 18.) Siska has not challenged the ALJ's finding that he is not credible. Having failed to challenge that finding, Siska has failed to show that the ALJ erred in her decision not to credit Dr. Brody's assessment, which was based in large part on Siska's statements.
The ALJ also noted that Siska's treating records did not contain any findings contradicting Dr. Krelstein's opinion that Siska could perform simple repetitive tasks.
Indeed, after an April 23, 1997 examination by a radiologist to whom Siska had been referred by his treating physician, the radiologist provided the following "impression": "What is probably minor arthritic change between the manubrium and body of the sternum. Otherwise normal bone scan. Normal uptake of isotope in both hip areas." (See Tr. at 161.)
Siska told Dr. Brody in June 1997 that he ceased drinking alcohol one month prior to the examination, (see Tr. at 165), while telling Dr. Patel, also in June 1997, that he stopped drinking alcohol three years prior to the examination. (See Tr. at 168.) Siska also reported to Dr. Patel that had not used any drugs since 1992, (see Id. while testifying before the ALJ that he last used drugs in 1995. (See Tr. at 36.)
b. Dr. Patel
Dr. Patel conducted a psychiatric examination of Siska on June 28, 1997. Dr. Patel diagnosed Siska with a current "global assessment of functioning" of 45/50, (see Tr. at 170), which the ALJ interpreted to be an opinion that Siska "showed some restriction in dealing with the public and withstanding the stresses and pressures associated with day-to-day work activity." (See Tr. at 17.) Dr. Patel also diagnosed Siska with "agoraphobia, " "possible bipolar affective disorder," "possible general anxiety disorder," "possible somatization disorder," and "possible dependent personality disorder." (See Tr. at 170.)
Dr. Patel, a psychiatrist, examined Siska at the request of a state agency. (See Tr. at 167, 171.)
The ALJ rejected Dr. Patel's assessment, relying on the conclusion of Dr. Krelstein that Siska could perform "competitive simple repetitive tasks." (See Tr. at 17.) The ALJ rejected Dr. Patel's assessment on the ground that the assessment was based on Siska's statements to Dr. Patel, and the ALJ had concluded that Siska was not credible. As discussed above, the ALJ cited specific reasons to support her finding that Siska was not credible, and Siska has not challenged that finding. Having failed to challenge the ALJ's finding that he is not credible, Siska has failed to show that the ALJ erred in her decision not to credit Dr. Patel's assessment, which, as with Dr. Brody, was based in large part on Siska's statements.
Dr. Krelstein's opinion is based, in part, on a finding that Siska is "not significantly limited" in the "ability to 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." (See Tr. at 203.)
Dr. Patel reported: "Source of information for this evaluation was from the patient [Siska], who was a good historian and the friend [who accompanied Siska] who was a good historian. There were no accompanying records available for review." (See Tr. at 167.)
Moreover, even if Dr. Patel's assessment had been credited by the ALJ, that assessment would have been of minimal, if any, assistance to Siska as Dr. Patel concluded that "[Siska's] psychiatric condition is expected to improve significantly within the next six to twelve months with appropriate treatment." (See Tr. at 170) Indeed, Siska's medical records indicate that after his evaluation by Dr. Patel, Siska in fact responded positively to medication. The notes of Siska's treating physician, Dr. Chua, indicate that Siska's depression was "very well controlled" on medication, (see Tr. at 233 (treatment notes dated November 4, 1997)), that Siska was "doing much better on his depression," (see Tr. at 223 (treatment notes dated January 22, 1998)), and that Siska was "overall doing better in terms of depression." (See Tr. at 222 (treatment notes dated February 24, 1998).)
As noted, a person is not disabled unless he cannot engage in "substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." See 42 U.S.C. § 423(d)(1)(A).
2. The Appeals Council's Decision
Siska argues that the Appeals Council improperly rejected the opinion-of treating physician Dr. Chua and the opinion of treating psychological intern Cook.
The opinion of a treating physician is generally entitled to deference. See Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). A treating physician's opinion, however, is not necessarily conclusive as to either the claimant's physical condition or the ultimate issue of disability. See Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Where there is a conflict between the opinions of a treating and a non-treating physician, the Appeals Council may properly disregard the treating physician's opinion by "setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." See id.
After the ALJ issued her decision, Siska obtained the opinions of Dr. Chua and Cook and provided them to the Appeals Council, who considered the opinions and added them to the administrative record, but found that they provided insufficient grounds to change the ALJ's decision. (See Tr. at 5-7.)
Dr. Chua, one of Siska's treating physicians, completed two forms in which he was asked to provide his assessment of Siska's ability to perform work-related tasks. (See Tr. at 276.) In one form, which addressed physical abilities, Dr. Chua stated that (1) as a result of severe hip and back pain, the maximum amount of weight Siska could lift occasionally was 5-10 pounds, and 0-10 pounds frequently; (2) Siska has a limited ability to stand and sit during an 8-hour work day; (3) Siska has no sitting restrictions; (4) Siska can "never" climb, balance, stoop, crouch, kneel, or crawl; (5) Siska can reach, handle, feel, push/pull, see, hear, and speak; and (6) Siska is subject to a number of "environment restrictions" — heights, moving machinery, temperature extremes, chemicals, dust, noise, fumes, humidity, and vibration — because he is "unable to perform any activities that would require balance, strength and rapid action," and because he cannot walk due to fibromyalgia. (See Tr. 276-78.) In the other form, which addressed mental abilities, Dr. Chua stated that (1) Siska has a poor, or no, ability to interact with supervisors, deal with work stresses, function independently, or maintain attention and concentration, and has a fair ability to follow work rules, relate to co-workers, deal with the public, and use judgment; (2) Siska has a poor, or no, ability to understand, remember and carry out either "complex" or "detailed, but not complex" job instructions, and a fair ability to understand, remember, and carry out simple job instructions, because he has a poor memory and is constantly on medications that affect him; and (3) Siska has a poor, or no, ability to demonstrate reliability, and a fair ability to maintain his personal appearance, to behave in an emotionally stable manner, and to relate predictably in social situations. (See Tr. at 279-80.)
In response to the question "how many hours in an 8-hour work day can the individual stand and/or walk: total? without interruption?," Dr. Chua answered "1/2" and "1/10." (See Tr. at 277.)
Cook, a treating psychological intern, completed a form addressing Siska's mental abilities and first stated that Siska has a poor, or no, ability to deal with the public, interact with supervisors, deal with work stresses, function independently, and maintain attention and concentration, and has a fair ability to follow work rules, relate to co-workers, and use judgment. (See Tr. at 282.) In explaining those opinions, Cook stated that Siska "has medical problems which prevent him from holding a job;" that he is in "constant pain and distress," which keeps him "on edge;" that he cannot walk without a cane and cannot stand, sit, or lie down without pain; and that he suffers from "depression, major psychotic features," "dependent personality disorder," and "fibromyalgia, arthritis, back problems." (See Id.) Cook next stated that Siska has a fair ability to understand, remember and carry out job instructions, whether those instructions are simple, detailed, or complex. (See Tr. at 283.) In explaining that opinion, Cook stated that "although this client is intelligent, his abilities are restricted due to his extreme pain and stress [which] renders him unable to cope with daily work expectations." (See Id.) Cook further opined that Siska "is not a candidate for the work force," and that although medical intervention and therapy would improve his quality of life, he still would not be able to work. (See Id.)
Siska advised the Appeals Council that Cook was his "treating psychotherapist." (See Tr. at 281.) On the form Cook completed, she described herself as an "intern." (See Tr. at 283.) In the papers filed herein, Siska refers to Cook as a "treating psychological intern." (See Pl.'s Mot. at 13:14.)
As noted, the Appeals Council considered the opinions of Dr. Chua and Cook, but found those opinions did not provide a basis for changing the ALJ's decision. (See Tr. at 5.) In so ruling, the Appeals Council did not provide any specific and legitimate reasons for its conclusion, and thus erred. See Ramirez v. Shalala, 8 F.3d 1449, 1453-54 (9th Cir. 1993) (holding where Appeals Council considered report of treating physician for first time on appeal and stated that such evidence did not provide basis for changing ALJ's decision, Appeals Council erred by failing to give any specific and legitimate reasons for disregarding opinion of treating physician). Consequently, the Commissioner's decision not to award benefits cannot be affirmed, and the case must be remanded either for further proceedings or for an award of benefits. See McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (holding where ALJ did not provide specific and legitimate reasons for rejecting opinion of treating physician, case must be remanded for further proceedings or award of benefits).
In defendant's cross-motion for summary judgment, defendant proffered reasons the Appeals Council might have relied upon in concluding that Dr. Chua's report did not warrant remand for further hearing. (See Def.'s Mot. at 7.) A federal agency's decision, however, "can be upheld only on a ground upon which it relied in reaching that decision." See Vista Hill Foundation. Inc. v. Heckler, 767 F.2d 556, 559 (9th Cir. 1985).
The decision whether to remand for further proceedings or for benefits is within the discretion of the Court. See id. Where "[t]here may be evidence in the record to which the Secretary can point to provide the requisite specific and legitimate reasons for disregarding the [opinions] of [a] treating physician," the case is properly remanded for further proceedings. See id. As the Ninth Circuit has observed, "the Secretary is in a better position than [a] court" to determine whether or not such reasons exist. See id. A remand for further proceedings is particularly warranted in this case as the record is unclear whether Cook is an "acceptable medical source" within the meaning of 20 C.F.R. § 416.913(a), and because the opinions of Dr. Chua and Cook differ as to certain relevant restrictions, including, for example, whether Siska has the ability to sit for 8 hours.
"Acceptable medical sources" include "licensed or certified psychologists." See 20 C.F.R. § 416.913(a)(2). An opinion from a person who is not an "acceptable medical source" need not be afforded any deference by the Commissioner. See Bunnell v. Sullivan, 912 F.2d 1149, 1152 (9th Cir. 1990), rev'd en banc on other grounds, 947 F.2d Cir. 1991).
Accordingly, the Court will remand the action to the Appeals Council for further consideration of the opinions of Dr. Chua and Cook.
B. Use of the Grids
Siska argues that the ALJ erred by using the grids to satisfy the Commissioner's burden at Step 5 of the evaluation process.
"At Step Five of the five-step sequential inquiry, the Commissioner bears the burden of proving that the claimant can perform other jobs that exist in substantial numbers in the national economy." Bruton v. Massanari, 268 F.3d 824, 827 n. 1 (9th Cir. 2001) (internal quotation and citation omitted). "There are two ways for the Commissioner to meet this burden: (1) by the testimony of a vocational expert or (2) by reference to the grids." Id.
In order to improve the "uniformity and efficiency of this determination," the SSA uses the grids, which "consist of a matrix of the four factors identified by Congress — physical ability, age, education, and work experience — and set forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy." See Heckler v. Campbell, 461 U.S. 458, 462-62 (1983). Where, however, a claimant's "non-exertional limitations are in themselves enough to limit his range of work, the grids do not apply, and the testimony of a vocational expert is required to identify specific jobs within the claimant's abilities." See Polny v. Bowen, 864-F.2d 661, 663-64 (9th Cir. 1988). "The fact that a non-exertional limitation is alleged does not automatically preclude application of the grids." Desrosiers v. Secretary of Health Human Serv., 846 F.2d 573 577 (9th Cir. 1987). Rather, "[t]he ALJ should first determine if the claimant's non-exertional limitations significantly limit the range of work permitted by his exertional limitations." Id.
An exertional impairment is one that affects the claimant's ability to meet the "strength demands of jobs." See 20 C.F.R. § 416.969a.
Here, the ALJ found that Siska had severe depression, a non-exertional impairment, and concluded that Siska's depression did not preclude him from performing "unskilled work at all exertional levels." (See Tr. at 19.) As noted, the ALJ did not have the benefit of the opinions of Dr. Chua and Cook in reaching that conclusion. Because the Court will remand this action for further consideration of the opinions of Dr. Chua and Cook, the Court will likewise remand for further consideration of whether use of the grids is appropriate, in the event that the opinions of Dr. Chua and Cook are, in part or in whole, credited.
CONCLUSION
For the reasons expressed above, the above-entitled action is hereby REMANDED to the Appeals Council for further proceedings consistent with this order.
The Clerk shall close the file.