Summary
holding that the ALJ erred in adopting the functionality opinion of a non-examining state agency physician, an opinion which pre-dated “plaintiff's treating records regarding the progression of his spinal impairments, which were developed after the date of Dr. Pancho's opinion.”
Summary of this case from Franco v. KijakaziOpinion
No. 2:15-cv-0463-CKD
10-27-2015
CLAUDE TIMOTHY STEVENSON, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying an application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). For the reasons discussed below, the court will grant plaintiff's motion for summary judgment, deny the Commissioner's cross-motion for summary judgment, and remand this matter under sentence four of 42 U.S.C. § 405(g).
I. BACKGROUND
Plaintiff, born February 15, 1962, applied on February 24, 2010 for SSI, alleging disability beginning January 1, 2006. Administrative Transcript ("AT") 248-55. Plaintiff alleged he was unable to work due to hepatitis C, gastrointestinal problems, cirrhosis of the liver, and psychotic and depressive disorders, among other impairments. AT 439, 468. In a decision dated June 27, 2014, the ALJ determined that plaintiff was not disabled. AT 17-26. The ALJ made the following findings (citations to 20 C.F.R. omitted):
Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as an "inability to engage in any substantial gainful activity" due to "a medically determinable physical or mental impairment. . . ." 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation:
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.
1. The claimant has not engaged in substantial gainful activity since February 24, 2010, the application date.
2. The claimant has the following severe combination of impairments: psychotic disorder not otherwise specified, mood disorder not otherwise specified, a history of heroin dependence, hepatitis C virus, schizoaffective disorder, anti-social personality disorder, gastroesophageal reflux disease, a history of acute pancreatitis, a history of bilateral thumb and right foot surgery with arthritis and residual pain, degenerative disc disease of the lumbar spine, degenerative disc disease and stenosis of the cervical spine with radiculopathy and C5 nerve root involvement, right carpal tunnel syndrome, and chronic obstructive pulmonary disorder.
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.AT 19-25.
4. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a wide range of light work as defined in 20 CFR 416.967(b). He can lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk 6 hours in an 8-hour workday, sit 6 hours in an 8-hour workday; the claimant cannot climb ladders, ropes, or scaffolds, the claimant can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, crawl; the claimant can have occasional face-to-face interaction with the general public; the claimant can frequently push and pull, perform fine manipulation and gross manipulation activities, and the claimant can perform only simple, routine, and repetitive tasks. In addition, he must avoid concentrated exposure to pulmonary irritants, hazards, and temperature extremes.
5. The claimant has no past relevant work.
6. The claimant was born on February 15, 1962, which is defined as a younger individual age 18-49, on the date the application was filed. The claimant subsequently changed age category to closely approaching advanced age.
7. The claimant has a limited education and is able to communicate in English.
8. Transferability of job skills is not an issue because the claimant does not have past relevant work.
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.
10. The claimant has not been under a disability, as defined in the Social Security Act, since February 24, 2010, the date the application was filed.
II. ISSUES PRESENTED
Plaintiff argues that the ALJ committed the following errors in finding plaintiff not disabled: (1) failed to fully and fairly develop the record with regard to the impact plaintiff's impairments had on his ability to perform work-related functions; (2) failed to obtain an updated medical opinion from a medical expert regarding whether plaintiff's spinal impairments were equivalent to Listing 1.04; and (3) failed to provide clear and convincing reasons for finding plaintiff's testimony less than fully credible.
III. LEGAL STANDARDS
The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ's conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
IV. ANALYSIS
A. The ALJ Failed to Fully and Fairly Develop the Record
First, plaintiff argues that the ALJ failed to fully and fairly develop the record because he did not obtain a consultative examination for plaintiff's physical and mental impairments, and based his residual functional capacity ("RFC") determination on an incomplete medical record that did not permit the ALJ to engage in a proper evaluation of the medical evidence.
"The ALJ always has a 'special duty to fully and fairly develop the record and to assure that the claimant's interests are considered . . . even when the claimant is represented by counsel.'" Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (citing Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). "When the claimant is unrepresented, . . . the ALJ must be especially diligent in exploring for all the relevant facts." Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
It is well established that a claimant bears the burden of providing medical and other evidence that support the existence of a medically determinable impairment. Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998) ("At all times, the burden is on the claimant to establish her entitlement to disability insurance benefits."). Indeed, it is "not unreasonable to require the claimant, who is in a better position to provide information about his own medical condition, to do so." Yuckert, 482 U.S. at 146 n.5.
Nevertheless, as the Ninth Circuit Court of Appeals has also explained:
The ALJ in a social security case has an independent duty to fully and fairly develop the record and to assure that the claimant's interests are considered. This duty extends to the represented as well as to the unrepresented claimant. When the claimant is unrepresented, however, the ALJ must be especially diligent in exploring for all the relevant facts ... The ALJ's duty to develop the record fully is also heightened where the claimant may be mentally ill and thus unable to protect her own interests. Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to conduct an appropriate inquiry.Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citations and quotation marks omitted). In short, "[a]n ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citing Tonapetyan, 242 F.3d at 1150).
"The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record." Id. However, as some courts have persuasively observed, the ALJ "does not have to exhaust every possible line of inquiry in an attempt to pursue every potential line of questioning. The standard is one of reasonable good judgment." Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997) (citation omitted).
Here, the record upon which the ALJ's physical RFC determination was based was inadequate for the ALJ to properly evaluate the medical evidence and arrive at a physical RFC conclusion that was supported by substantial evidence. The ALJ determined that plaintiff's spinal impairments warranted a limitation to light work and a limitation on his use of his upper extremities. AT 24. However, the sole medical opinion in the record was that of Dr. Pancho, a State agency non-examining physician who reviewed plaintiff's medical records then-existing on December 20, 2010 and determined that plaintiff did not have a severe impairment. AT 766-67. Dr. Pancho's opinion was based solely on a review of the limited medical evidence developed between November 2008 and June 2010. Id. This evidence did not include any of plaintiff's treating records regarding the progression of his spinal impairments, which were developed after the date of Dr. Pancho's opinion. Furthermore, the medical record contained no opinion evidence from any of plaintiff's treating physicians, nor did plaintiff undergo a consultative examination regarding the functional impact of his physical and mental impairments. The only medical evidence in the record regarding plaintiff's spinal impairments is plaintiff's treating records spanning from November 2011 to May 2014. See AT 907, 1068. While some of these records indicate that plaintiff's spinal problems were "severe," e.g., AT 931, 986, 1068, they do not describe the impact of these impairments on a function-by-function basis in a manner that would provide the ALJ with a sufficient medical foundation to properly consider plaintiff's physical RFC. See Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15, 17 (1st Cir. 1996) ("With few exceptions, . . . an ALJ, as a layperson, is not qualified to interpret raw data in a medical record.").
The record shows that plaintiff was scheduled to attend two psychological consultative examinations but that plaintiff did not appear for either appointment due to his incarceration on those dates. AT 950-53, 963. However, it appears from the record that no physical consultative examinations were ever scheduled.
The court notes, however, that the record includes a California Department of Corrections disability placement program verification form dated December 1, 2008 that indicates that plaintiff had a "mobility impairment," required the use of a cane, had a restriction from using stairs, and could only sleep in a lower bunk. AT 305. While this note does not directly attribute these limitations to plaintiff's spinal impairments, they do reasonably indicate that such impairments may have caused plaintiff physical limitations as early as 2008. The ALJ did not address the potential significance of this evidence in his physical RFC discussion. See AT 22-23.
While the ALJ discussed the medical records regarding plaintiff's spinal impairments when determining the impact those impairments had on his physical RFC, it is evident from the ALJ's discussion of that evidence that he made an independent evaluation and improperly substituted his judgement for that of a medical expert. The Commissioner argues that this was not the case because the ALJ cited to treating records in his discussion of plaintiff's physical impairments that included the medical impressions and findings of a medical clinician in support of his physical RFC determination. However, while the treating records reviewed by the ALJ include medical impressions from plaintiff's treating physicians; those impressions consist of diagnoses and descriptions of plaintiff's spinal impairments obtained from imaging records of plaintiff's back. E.g., AT 905, 907, 973, 986. They do not indicate the impact those diagnosed impairments had on plaintiff's ability to work on a function-by-function basis. Nevertheless, the ALJ reviewed the medical findings in these records and made a physical RFC determination based on his own interpretation of that raw medical evidence. Such a determination was impermissible and cannot form the basis of an ALJ's RFC conclusions. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (the ALJ was not qualified as a medical expert and therefore could not permissibly go outside record to consult medical textbooks for purpose of making his own assessment of the claimant's physical condition); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) ("As a lay person, . . . , the ALJ was simply not qualified to interpret raw medical data in functional terms and no medical opinion supported the determination."); Manso-Pizarro, 76 F.3d at 17; Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) ("ALJs must not succumb to the temptation to play doctor and make their own independent medical findings.").
A treating note dated February 19, 2013 appears to indicate that Dr. Gregorious, one of plaintiff's treating physicians, reviewed an MRI of plaintiff's spine and determined that plaintiff's lumbar degenerative disc disease rendered plaintiff permanently disabled. AT 976. The Commissioner contends that it is not clear from this note that this opinion was issued by Dr. Gregorious or another proper medical source due to an ambiguous initial on the document. It is also unclear whether Dr. Gregorious actually assessed plaintiff as disabled or whether he merely recorded plaintiff's own report of disability. See id. Furthermore, the ALJ failed to specifically discuss this record when determining plaintiff's RFC. See AT 22-23. Given the ambiguities in Dr. Gregorious' ostensible opinion, the ALJ should have made an appropriate inquiry to clarify these ambiguities and should have specifically addressed this evidence in his decision. See Mayes, 276 F.3d at 459-60 (an ALJ's duty to develop the record arises when the record contains ambiguous evidence).
Given the dearth of medical evidence in the record indicating the degree to which plaintiff's spinal impairments impacted his physical functional capacity, the ALJ had a duty to further develop the record. However, he did not fulfill that duty. He did not seek to have plaintiff undergo a physical examination, or even obtain further review of plaintiff's treating records by a State agency physician based on the medical records developed after 2010. Nor did the ALJ keep the record open after the hearing to allow for further supplementation. Furthermore, the ALJ improperly interpreted the treating records that were available and made an RFC determination based on that raw medical data. Accordingly, the ALJ committed prejudicial error that invalidated his physical RFC findings. See Tonapetyan, 242 F.3d at 1151 (reversing and remanding for further proceedings where ALJ's RFC determination was based on an inadequately developed medical record); Nguyen, 172 F.3d at 35 (reversing and remanding for further proceedings where the ALJ rendered an RFC determination was based on his own interpretation of raw medical data that was not supported by medical opinion evidence).
The court also notes that the ALJ did not take such steps to supplement the record even after the Appeals Council initially remanded the case back to the ALJ with the direction "to obtain additional evidence concerning the claimant's impairment[s]." AT 17.
B. The ALJ's Error Warrants Remand for Further Proceedings
When the court finds that the ALJ committed prejudicial error, it has the discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Generally, if the court finds that the ALJ's decision was erroneous or not supported by substantial evidence, the court must follow the "ordinary remand rule," meaning that "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). A remand for an award of benefits is inappropriate where the record has not been fully developed or there is a need to resolve conflicts, ambiguities, or other outstanding issues. Id. at 1101.
Here, the ALJ's error requires this matter to be remanded for further proceedings. As discussed above, the record in this action regarding plaintiff's spinal impairments has not been adequately developed such that the ALJ could make a proper RFC determination regarding the functional impact of those impairments on plaintiff's ability to perform physical work-related activities. Accordingly, development of the record through further administrative proceedings is warranted.
On remand, the ALJ shall obtain a consultative physical examination by a physician who has full access to plaintiff's past medical records. The consultative examination shall focus on the functional limitations caused by plaintiff's physical impairments, in particular, his spinal impairments, during the relevant time period, but shall also consider whether plaintiff's impairments and functional capacity improved or worsened thereafter through the present. The ALJ shall also obtain clarification of the apparent ambiguities discussed above with regard to the treating note in the record dated February 19, 2013. AT 976. Furthermore, the ALJ should also schedule plaintiff for a further consultative psychological examination. The ALJ may obtain opinions from plaintiff's treating physicians regarding plaintiff's physical and mental limitations, if necessary. The ALJ is also free to develop the record in other ways, as needed.
The court also notes that the record also does not contain any medical opinions or other records directly reflecting upon the functional impact of plaintiff's wrist impairments and subsequent hand surgeries. Accordingly, the consultative physical examiner should also be requested to provide an opinion concerning the impact and materiality of plaintiff's wrist impairments.
Although the consultative examination will take place in the present, the consultative examiner shall use best efforts, utilizing the findings of the present physical examination, plaintiff's past medical records, and the examiner's clinical expertise and judgment, to render an opinion regarding plaintiff's functional capacity during the relevant period.
The court recognizes that the ALJ earlier ordered two consultative psychological examinations in this matter that plaintiff failed to attend. AT 950-53. However, plaintiff's failures to attend were a result of his incarceration on the scheduled examination dates, indicating that plaintiff's absences were not willful. AT 963. Furthermore, the only opinion evidence in the record regarding the functional impact of plaintiff's mental impairments is that of Dr. Pancho, a non-examining State agency physician who only reviewed plaintiff's medical records developed prior to December 2010. Accordingly, the ALJ should obtain opinion evidence that addresses plaintiff's mental impairments for the entire relevant time period. See Garrison v. Colvin, 759 F.3d 995, 1017-18 (9th Cir. 2014) (cautioning ALJs against drawing the inference that a claimant can function effectively in the workplace from medical reports indicating improvement of mental impairments "when no doctor or other medical expert has opined, on the basis of a full review of all relevant records, that [the claimant] is capable of working or is prepared to return to work" (emphasis added)).
Importantly, the court expresses no opinion regarding how the evidence should ultimately be weighed, and any ambiguities or inconsistencies resolved, on remand. The court also does not instruct the ALJ to credit any particular opinion or testimony. The ALJ may ultimately find plaintiff disabled during the entirety of the relevant period; may find plaintiff eligible for some type of closed period of disability benefits; or may find that plaintiff was never disabled during the relevant period—provided that the ALJ's determination complies with applicable legal standards and is supported by substantial evidence in the record as a whole.
C. Other Issues
Plaintiff also argues that the ALJ further failed to fulfill his duty to fully and fairly develop the record by not obtaining an updated medical opinion from a medical expert regarding whether plaintiff's spinal impairments were equivalent to Listing 1.04, which plaintiff contends violated SSR 96-6p. Because the court finds the record inadequately developed regarding plaintiff's spinal impairments, it declines to address the substance of this issue at this juncture. Further development of the record regarding plaintiff's spinal impairments will allow the ALJ to make an informed decision on remand as to whether SSR 96-6p mandates him to obtain an updated medical expert opinion regarding whether plaintiff's spinal or other impairments are equivalent to Listing 1.04, or any other listing in 20 C.F.R. Part 404, Subpart P, Appendix 1.
SSR 96-6p provides, in pertinent part:
[A]n administrative law judge and the Appeals Council must obtain an updated medical opinion from a medical expert in the following circumstances: . . .--------
When no additional medical evidence is received, but in the opinion of the administrative law judge or the Appeals Council the symptoms, signs, and laboratory findings reported in the case record suggest that a judgment of equivalence may be reasonable[.]
Finally, plaintiff contends that the ALJ erred in his credibility findings regarding plaintiff's testimony. Because the court will remand this action for further development of the record, it declines to address this argument at this time. The ALJ's reasons for discounting plaintiff's testimony were based largely on discrepancies the ALJ found to exist between plaintiff's testimony and the objective medical evidence in the record. AT 22, 24. Accordingly, the ALJ's findings regarding credibility may change once the record has been more fully developed. On remand, the ALJ will have the opportunity to reassess the credibility of plaintiff's testimony in light of the further-developed record.
V. CONCLUSION
For the reasons stated herein, this matter will be remanded under sentence four of 42 U.S.C. § 405(g) for further development of the record and for further findings addressing the deficiencies noted above. Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (ECF No. 25) is granted for purposes of further development of the record consistent with the court's directions set forth above;
2. The Commissioner's cross-motion for summary judgment (ECF No. 26) is denied; and,
3. This matter is remanded for further proceedings consistent with this order. Dated: October 27, 2015
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
11 stevenson0463.ss
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.