Opinion
No. 02-00626 MMC
December 2, 2003
Plaintiff Evelynne Smith ("Smith") brings the above-titled action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of the Social Security Administration ("Commissioner"). The matter is before the Court on plaintiffs motion for summary judgment and defendant'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 filed in support of and in opposition to the motions, the Court rules as follows.
BACKGROUND
On February 4, 2000, Smith filed an application for disability benefits, alleging that she has been unable to work as of June 27, 1996 due to a herniated disc in her lumbar spine, severe pain and numbness in her right leg and foot, and depression, all resulting from an accident in June 1996, in which Smith, then an employee of a dairy, was knocked to the ground by cattle. (Transcript of Record ("Tr.") at 27, 99-103.) Smith's application was denied by the Social Security Administration ("SSA") initially, (Tr. at 57-60), and on reconsideration (Tr. at 62-65). Smith thereafter requested a hearing before an administrative law judge ("ALJ"). (Tr. at 69.)
On December 18, 2001, the ALJ conducted a hearing at which plaintiff was represented by counsel. (Tr. at 22-54.) On February 22, 2002, the ALJ issued a decision analyzing Smith's claim under the SSA's five-step sequential evaluation process. (Tr. at 9-18.) The ALJ found that Smith was "not disabled within the meaning of the Social Security Act, prior to March 31, 1998, the date her disability insured status expired." (Tr. at 10.) In so ruling, the ALJ found that although Smith has a "combination of impairments considered `severe,'" Smith's "medically determinate lumbar pain and depression did not prevent [Smith] from performing her past relevant work prior to March 31, 1998." (Tr. at 17.) Accordingly, the ALJ denied Smith's application at the fourth sequential step.
"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 in 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 in 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).
The last insured date refers to the last day a claimant has insurance coverage for disability benefits. See Armstrong v. Commissioner of the Social Sec. Admin., 160 F.3d 587, 589 (9th Cir. 1998). In order to obtain disability benefits, a claimant must prove a disability existing prior to the last insured date. See id. (citing 42 U.S.C. § 423(c)).
On April 19, 2002, Smith requested that the Appeals Council review the ALJ's decision. (Tr. at 4.) On December 3, 2002, the Appeals Council denied review. (Tr. at 2-3.) Smith thereafter filed the instant action for judicial review.
LEGAL STANDARD
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. Chater, 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." 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 reviewing court will uphold the decision of the ALJ. See id.
DISCUSSION
In her motion for summary judgment, Smith asserts that the ALJ erred by (1) failing to call a medical expert to determine the onset date of her alleged disabling impairments; (2) failing to provide an adequate explanation for his finding that Smith's impairments did not meet or equal the medical listing fbr back impairments found in Appendix 1 to Subpart P of Social Security Regulation No. 4; and (3) misconstruing evidence relating to Smith's credibility. Smith seeks an order reversing and remanding for payment of benefits, and, alternatively, for further hearing. The Commissioner argues that Smith has not shown any error entitling her to relief.A. Determination of Disabling Impairment
The ALJ found that Smith was not disabled prior to her last insured date, but indicated she appeared to be disabled at some point after her last insured date. (Tr. at 10.) Smith argues that the ALJ erred by failing to call a medical expert to determine the onset date of any such disability.
In her moving papers, Smith argues the ALJ additionally failed to properly consider her mental impairment. In her reply, however, Smith clarifies that this issue is subsumed in the question of whether the ALJ erred by failing to determine an onset date.
In order to qualify for disability benefits, a claimant must prove that a disabling impairment existed prior to the last insured date. See Armstrong v. Commissioner of the Social Sec. Admin., 160 F.3d 587, 589 (9th Cir. 1998). If the ALJ finds that a claimant has a disability, the ALJ "must also establish the onset date of disability." SSR 83-20. "The onset date of disability is the first day an individual is disabled as defined in the [Social Security] Act and the regulations."Id. An ALJ must consult a medical expert to determine the onset date of a disabling impairment where "medical inferences" regarding the onset date must be made. See Armstrong, 160 F.3d at 590 (holding ALJ erred by failing to call medical expert to determine onset date of disability where it was unclear from medical evidence when impairment became disabling).
In his decision, the ALJ concluded that Smith "was not disabled within the meaning of the Social Security Act, prior to March 31, 1998, the date her disability insured status expired." (Tr. at 10.) The ALJ further stated, however, that Smith "might certainly be considered disabled at the present time or even at some period subsequent to March 31, 1998," (Id.), thus indicating that Smith appeared to be disabled subsequent to her last insured date. The ALJ did not proceed to determine the onset date of any such disability.
Both the Commissioner and Smith agree that March 31, 1998 is Smith's last insured date.
Although the ALJ did not cite to evidence in support of this finding, such evidence is contained in the record. Gary P. McCarthy, M.D. ("Dr. McCarthy"), in a report dated June 29, 2001, found that Smith suffers from a "total and permanent disability, or 100% disability" as a result of her back impairment. (Tr. at 335.)
Although not discussed by the parties, the ALJ also stated, without explanation, that Smith "was not under a disability as defined in the Social Security Act, at any time through the date of this decision." (Tr. at 17 (emphasis added).) If Smith in fact was not disabled at any time, the ALJ would not be required to determine an onset date. The above statement, however, if intended to be a finding of fact, is insufficient to support the decision denying plaintiffs application. As noted, Smith's examining physician, Dr. McCarthy, opined that Smith suffers from a "total and permanent disability, or 100% disability." (Tr. at 335.) The ALJ did not address that opinion, let alone set forth any reason for rejecting it. "Even if contradicted by another doctor, the opinion of an examining doctor can be rejected only for specific and legitimate reasons that are supported by substantial evidence in the record." Regennitter v. Commissioner of the Social Sec. Admin., 166 F.3d 1294, 1298-1299 (9th Cir. 1999).
In support of her argument, Smith relies on Quarles v. Barnhart, 178 F. Supp.2d 1089 (N.D.Cal. 2001). In Quarles, the ALJ found the claimant did not have a disabling impairment before the last insured date. See id. at 1095. The ALJ, however, found that the claimant was suffering from "severe emotional disorders" on the date of the hearing. See id. The district court held that the ALJ "erred as a matter of law when he did not call a medical advisor, but instead inferred, based on the dates of medical treatment, that the onset date of Quarles' `currently established] severe emotional disorders' was not prior to Quarles' [last insured date]." id. at 1096. Relying on Armstrong, the court concluded that "where medical inferences regarding the onset date need to be made, the ALJmust consult a medical expert before determining the onset date." id. (emphasis in original.)
The present case is factually similar to Quarles, As inQuarles, the ALJ concluded that Smith did not have a disabling impairment before the last insured date. Also, as in Quarles, the ALJ indicated that Smith appeared to have a disabling impairment after the last insured date. Further, as in Quarles, the ALJ concluded, without the aid of a medical expert, that Smith's impairments did not become disabling before the last insured date. Consequently, if, as in Quarles, the onset date here is unclear from the medical evidence, the ALJ erred by failing to consult a medical expert before determining the onset date.
In Quarles, the district court held that the evidence before the ALJ "demonstrate[d] an ambiguity regarding the onset." Id. at 1097. Here, the medical evidence likewise demonstrates ambiguity. As previously noted, see n. 5, Dr. McCarthy concluded, in a report dated June 29, 2001, that Smith was disabled. (Tr. at 335.) The fact that this diagnosis was not made until three years after Smith's last insured date contributes to the ambiguity regarding the onset date of Smith's disabling impairment. See Quarles, 178 F. Supp.2d at 1097 (finding ambiguity as to onset date where diagnosis made two years after last insured date). Further, Smith offered medical evidence that described her symptoms and treatment over a period of time both encompassing and related to the qualifying period. That evidence included the medical notes of Gary A. Johanson, M.D. ("Dr. Johanson"), which describe the symptoms and treatment that Smith received from October 1996 through April 2000, including a laminectomy and discectomy in September 1998 (Tr. at 250-282); the results of an MRI performed by Robert A. Harf, M.D., in March 1997, which showed scarring of the nerve roots and a lumbar disc protrusion (Tr. at 302); and a pain management consultation conducted by Charles W. Evans, M.D., in September 2000 (Tr. at 350-354). These records reflect extensive physical findings, and none sets forth or otherwise conclusively establishes a time frame within which Smith's impairment may have become disabling. Additionally, the ALJ's statement that Smith "might certainly be considered disabled at the present time or even at some period subsequent to March 31, 1998," (Tr. at 10), indicates that the ALJ himself was unsure of the onset date.
In sum, in light of Dr. McCarthy's finding of disability as of mid-2001, the absence of an indication by any doctor as to the onset date of any such disability, and the ALJ's own statement regarding onset, an ambiguity exists as to the onset date of Smith's disability and such date must be inferred from the medical evidence. Consequently, the ALJ erred by not consulting a medical expert to determine the onset date. See Armstrong, 160 F.3d at 590. Accordingly, remand is appropriate to afford the ALJ the opportunity to consult with a medical expert.
On remand, a determination as to whether Smith has a disabling impairment must be made "on the basis of all the evidence available in the individual's case file," see 42 U.S.C. § 423(f), 1382c(a)(4), including "medical evaluations made after the expiration of claimant's insured status; such evaluations "are relevant to an evaluation of the pre-expiration condition." See Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988) (reversing where ALJ disregarded medical reports dated after expiration of insured status).
Smith argues that the ALJ, in determining whether Smith suffered from a disability, erroneously applied a clear and convincing standard of proof rather than a preponderance of evidence standard. Smith's argument is based on the ALJ's statement that "[t]he evidence must clearly demonstrate that claimant was disabled." (Tr. at 10.) This single use of the word "clearly" is not sufficient to suggest the ALJ applied an incorrect standard of proof, nor does the content of the ALJ's decision otherwise indicate that an incorrect standard was applied.
B. Medical Listing
The ALJ, at step three of the five-step sequential evaluation process,see 20 C.F.R. § 404.1520(d), found that Smith's back impairment did not meet or equal the severity required for an impairment on the List of Impairments in Appendix 1 to Subpart P of Social Security Regulation No. 4 ("listing"). Smith argues that the ALJ did not adequately explain his finding that Smith's impairment did not equal the listing for back impairments.
The ALJ also concluded that Smith's depression did not meet or equal a listed impairment (Tr. at 10.) Smith, does not challenge this finding.
An award of benefits is required if a claimant's impairment meets or equals an impairment in the listing, without regard to age, education, and work experience. See 20 C.F.R. § 404.1520(d). Equivalence is determined by comparing the "symptoms, signs and laboratory findings" concerning the claimant's impairment as shown in the medical records "with the medical criteria shown with the listed impairment." 20 C.F.R. § 404.1526(a). In determining equivalency under step three, "the ALJ must explain adequately his evaluation of alternative tests and the combined effects of the impairments."Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). A mere statement that a claimant does not equal the listing is insufficient.See id. Rather "[a]n examiner's findings should be as comprehensive and analytical as feasible and, where appropriate, should include a statement of subordinate factual foundations on which the ultimate factual conclusions are based, so that a reviewing court may know the basis for the decision." Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981) (internal quotation and citation omitted).
In Marcia, the claimant presented evidence in support of his argument that his impairment was equivalent to a listed impairment.See Marcia, 900 F.2d at 176. The ALJ made the following finding as to equivalence: "The claimant has failed to provide evidence of medically determinable impairments that meet or equal the Listings to Subpart P of Regulation 4 or the duration requirements of the Act."Id. The Ninth Circuit held that the ALJ's conclusory finding was insufficient and remanded the matter for proper consideration of the evidence at step three. Id.
Here, Smith presented evidence in an effort to establish equivalency with the listing for back impairments found in Appendix 1 to Subpart P of Social Security Regulation No. 4. (Tr. at 10.) The ALJ concluded that Smith's back impairment was "not severe enough to meet or medically equal one of the impairments listed in Appendix 1, Subpart P of Regulations No. 4." (Tr. at 10.) The ALJ, however, did not cite any medical records, or the lack thereof, to support his conclusion, nor did he compare the symptoms, signs and laboratory findings about the impairments, as required by 20 C.F.R. § 404.1526. In other words, the ALJ did not explain how Smith's alleged impairment failed to meet the listings for a back impairment.
The Commissioner argues that the ALJ properly addressed Smith's contention that she met the medical listing because the ALJ "provided a six page summary and analysis of the medical record and other pertinent evidence." (See Defs Mot. at 5.) In support of this argument, the Commissioner relies on Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990). In Gonzales, the Ninth Circuit found that an ALJ's decision to deny the claimant's application at step three was supported by an "adequate statement of the foundations on which the ultimate factual conclusions [were] based," id. at 1201 (internal quotation omitted), and rejected the claimant's argument that the ALJ was required to "state why [the] claimant failed to satisfy every different section of the listing of impairments." Id.
Here, Smith does not argue that the ALJ was required to explain why she did not meet "every different section." Rather, she argues that the ALJ did not provide an "adequate statement of the foundations" for his finding that she did not equal the section of the listing pertaining to back impairments. Given the medical record presented, the Court agrees. The ALJ's evaluation consists of a recitation of some of the medical evidence in the record coupled with his finding that "[t]he medical evidence indicates claimant has lumbar pain and depression." (Tr. At 10.) The medical evidence in fact indicates far more than these two findings. Indeed the ALJ's own summary of the medical records includes an April 1997 report by Paul LaHaye, M.D. ("Dr. LaHaye"), wherein Dr. LaHaye, based on an MRI taken the previous month, states that Smith had "paracentral disc protrusions/herniations" with what "appeared to be impingement on the traversing elements at both the L5 and S1 roots," (Tr. At 11); based on these findings Dr. LaHaye recommended surgery to excise the disc, which, as noted above, Smith ultimately underwent in 1998. In light of the medical evidence, the ALJ was required to set forth an evaluation of the evidence sufficient for a reviewing court to determine how he arrived at the conclusion that Smith's back impairment, characterized by the ALJ as "severe," did not meet the listing.
Although a report by another physician, A.M. Auerbach, M.D. ("Dr. Auerbach"), also prepared in April 1997 and referenced by the ALJ, appears to find to the contrary, (see Tr. At 11), the ALJ, as noted, does not discuss in any manner his decision, if any, to accept one report over the other.
In sum, the ALJ did not provide an adequate basis for his equivalency evaluation as required by 20 C.F.R. § 404.1526(a), and, consequently, the ALJ erred in his analysis at step three. Under such circumstances, remand for further proceedings is appropriate. See Lewin v. Schwenker, 654 F.2d at 636 ("If additional proceedings can remedy defects in the original administrative proceedings, a social security case should be remanded.")
C. Credibility
The ALJ found that Smith was not "totally credible." (Tr. at 17.) The ALJ questioned Smith's credibility in part because Smith failed to disclose to the SSA or the ALJ certain work she performed after June 27, 1996, the date she alleges her impairment became disabling. (Tr. at 15.) The ALJ also found that Smith was less than fully credible because the objective medical evidence did not support Smith's subjective complaints of pain. (See Tr. at 11-13.) Smith argues that the ALJ erred in his credibility determination to the extent the determination was based on her failure to disclose certain work, because, according to Smith, such failure to disclose is characteristic of a "scatterbrained" person. (See PL's Mot. at 16.)
The ALJ has the authority to determine whether a claimant's testimony is credible. See Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th Cir. 1991). If an ALJ finds a claimant's testimony as to the severity of pain and impairment unreliable, "the ALJ must make a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). In determining a claimant's credibility, an ALJ may consider, among other factors, inconsistencies between the claimant's testimony and the claimant's daily activities, conduct and/or work record. Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). "If the ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing." Thomas, 278 F.3d at 959.
In his decision, the ALJ found that Smith continued to work after June 27, 1996, the date she alleged her impairments became disabling. (Tr. at 15.) This finding was based on the report of Dr. Auerbach, who summarized a deposition given by Smith on March 24, 1997 in another matter. (Tr. at 170-171.) In that deposition, Smith disclosed certain work she had performed after June 27, 1996. (See id.) Smith, however, did not divulge that work, either in the Social Security forms she completed or during her testimony before the ALJ. (Tr. at 15.) Based on those omissions, the ALJ found that Smith's allegations regarding her limitations during the period at issue, June 27, 1996 through March 31, 1998, were not fully credible. (Tr. at 17.) The ALJ acted within the discretion afforded him when he weighed the evidence and concluded that Smith's omissions "detracted" from her credibility, (id.) Failure to disclose post-onset work provides substantial evidence to support a finding of diminished credibility. See 20 C.F.R. § 404.1571 ("Even if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did.") Consequently, substantial evidence supports the ALJ's credibility determination.
Accordingly, Smith has not shown that the ALJ erred in his assessment of her credibility.
CONCLUSION
For the reasons stated, the above-entitled action is hereby REMANDED for further proceedings consistent with this order.The Clerk shall close the file.
IT IS SO ORDERED.