Opinion
No. C 02-5171SI
October 15, 2003
ORDER GRANTING PLAINTIFF'S MOTION FOR REMAND AND REMANDING ACTION TO ADMINISTRATIVE LAW JUDGE FOR FURTHER PROCEEDINGS
Plaintiff Debra Winters brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security ("Commissioner") in which the Commissioner denied plaintiffs claims for Supplemental Security Income ("SSI") disability benefits under Title XVI of the Social Security Act ("Act"). On appeal, plaintiff contends: (1) the Administrative Law Judge ("ALJ") improperly disregarded the treating physician's assessment; (2) the ALJ did not consider claimant's mental impairments, and thus erroneously used the Medical Vocational Guidelines ("the Grid"); (3) the ALJ improperly found the claimant not credible; (4) the ALJ ignored the medical findings and substituted its own medical judgment; and (5) the ALJ did not allow the medical expert to give his complete assessment.
BACKGROUND
On March 15, 2000 Winters filed for SSI under Title XVI of the Social Security Act, 42 U.S.C. §§ 401 — 433, 1381 — 82c, alleging disability since February 1, 1979. Def. Mot. and Memo. in Support of Cross Mot. for Summ. J. and in Opposition to Plain. Mot. For Summ. J. 2. Winters alleges her disability arises from degenerative disc disease of the cervical spine with neuropathy, rheumatoid arthritis, peptic ulcer, and hepatitis. TR 21. The Commissioner denied her claim on June 16, 2000, and then again after reconsideration on February 8, 2001. TR 18. The ALJ heard arguments for this claim and on April 22, 2002 determined that Winters was not disabled. Id. After completing the five step evaluation, the ALJ found that although Winters has tendinitis of both shoulders and degenerative disc disease of the cervical spine, she is "not disabled within the meaning of Title XVI of the Social Security Act" and is able to perform light work. TR 18, 25. The Appeals Council denied review. Id. On October 24, 2002, plaintiff filed this appeal, and on May 19, 2003 she filed her motion for summary judgment.
Winters has previously filed for SSI on several occasions and has been denied. The last application she filed before this current application was filed on May 9, 1998. TR 19. At that time, she alleged that she had been disabled since February 1, 1979 because of arthritis and an ulcer. TR 19. Her application was denied, and she requested a hearing on February 19, 1999. The hearing took place on December 21, 1999 and the ALJ found that Winters was not disabled prior to the date of its decision. Winters did not file a request for review of that claim.
LEGAL STANDARD
A district court may disturb the final decision of the Social Security Administration "only if it is based on legal error or if the fact findings are not supported by substantial evidence." Sprague v. Bowen, 812 F.2d 1226, 1229 (9th Cir. 1987). "Substantial evidence, considering the entire record, is I relevant evidence which a reasonable person might accept as adequate to support a conclusion." Matthews v. Shalala, 10 F.3d 678, 679 (9th Cir. 1993). Substantial evidence means "more than a mere scintilla, but less than a preponderance."Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990) (citations omitted). The court's review "must consider the record as a whole," both that which supports, as well as that which detracts from, the Secretary's decision. Desrosiers v. Secretary of Health Human Services, 846 F.2d 573, 576 (9th Cir. 1988). "If the evidence admits of more than one rational interpretation, [the court] must uphold the decision of the ALJ."Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) (citingAllen v. Secretary of Health Human Services, 726 F.2d 1470, 1473 (9th Cir. 1984)).
DISCUSSION
Winters claims her case should be remanded for several reasons. First, she contends that the ALJ must use the treating doctor's assessment unless he gives clear reason why he is not using that information. Second, Winters argues that the Grid was improperly used because she has a mental impairment which prohibits the ALJ from using the Grid and the ALJ did not even evaluate her mental impairment. Third, Winters claims that the ALJ erroneously found that she was not credible because her testimony was consistent with the medical evidence. Fourth, she claims that the ALJ ignored the medical findings and substituted its own medical judgment. Finally, Winters claims that the ALJ violated her due process rights by not allowing the Medical Expert to explain why he found that her disability met the disability listings. Plaint. Mot. for Summ. J. at 1:21 — 26 — 2:1 — 26.
If the issues that a claimant presents are the same issues from a previous claim, the ALJ must follow the doctrine of res judicata. "The claimant, in order to overcome the presumption of continuing nondisability arising from the first administrative law judge's findings of nondisability, must prove `changed circumstances' indicating a greater disability." Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). It is the claimant's burden to demonstrate that there is new information which shows a disability, otherwise the previous judgment will be used by the ALJ of the next claim. LyIe v. Secretary of Health and Human Services, 700 F.2d 566, 568 (9th Cir. 1983).
The ALJ must follow a five step analysis to determine if a claimant is disabled. Bowren v. Yuckert, 482 U.S. 137, 140-42, (1987); 20 C.F.R. § 404.1520.
First, the claimant must not currently be performing "substantial gainful activity." Second, the claimant, based on medical evidence, must have a "severe" impairment or combination of impairments. A severe impairment is one "which significantly limits the claimant's physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). Third, a "severe" impairment must be equivalent in nature to an impairment listed in the regulations as one which the Commissioner acknowledges is so severe as to preclude substantial gainful activity. 20 C.F.R. § 404.1529(d). Fourth, if the claimant does not have a listed impairment, the impairment must in combination with other factors prevent the claimant from doing past work. Fifth and finally, if the claimant has established that the impairment prevents performance of past work, the burden shifts to the Commissioner to demonstrate that the claimant can perform other types of work that exist in the national economy, given the claimant's residual functional capacity, age, education, and work experience.Distasio v. Shalala, 47 F.3d 348, (9th Cir. 1995). The ALJ who evaluated Winters' claims followed this test and found that she was not disabled.
1. Treating doctor's assessment
Winters claims that there were no clear reasons supported by the record why the ALJ rejected the treating physician's diagnosis, and as a result it was wrong to disregard this diagnosis. Plaint. Mot. For Summ. J. at 1:22-26. Winters' treating doctor, Dr. Herring, found that Winters had a new impairment since her disability claim made December 21, 1999. The treating doctor diagnosed her with rheumatoid arthritis, and Winters asserts that the ALJ made an error not to use this diagnosis in his evaluation of her claim.
If there is a conflict between the diagnosis of the treating physician and the neutral examining physician it is the ALJ's responsibility to resolve it. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). The ALJ can reject the treating physician's diagnosis only if it gives "`legitimate reasons for doing so that are based on substantial evidence in the record.'" Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987), quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983).
The ALJ did give clear reasons for rejecting the treating physician's diagnosis. First the ALJ noted that Winters' sedimentation rate and ANA tests were normal, which indicates that she does not have rheumatoid arthritis. Second, Winters claims that she has pain in her back and neck, which the neutral medical expert ("ME"), Dr. Wasserman, told the ALJ is not a symptom of rheumatoid arthritis. Third, the ME testified that Winters' hands would be crooked if she had rheumatoid arthritis; however, her hands were not crooked. The ME also noted that the record contains no indication of swelling and stiffness which would also be symptomatic of rheumatoid arthritis. Further, the ALJ found the record to show that smooth muscle testing was normal, which is inconsistent with the disease. Finally, Winters is not being treated by any of the medicines that are commonly used for rheumatoid arthritis. For these reasons, the ALJ found that the treating physician's "evaluation of function is nil. In short, given the medical discrepancies given above, there is ample reason not to accept his functional assessment as valid even if one considered the claimant as having some other type of impairment." TR 22. (ALJ's opinion). This Court finds that the ALJ acted reasonably in rejecting Winters' treating physician's diagnosis.
2. Mental impairment evidence and use of the Grid
Winters claims that there is undisputed medical evidence that her depression is a mental impairment and thus, use of the Grid to deny disability benefits was inappropriate. Plaint. Mot. for Summ. J. at 2:12-17. The Grid is used to determine if there are jobs in the national economy that the applicant can perform. Haves v. Sullivan, 1992 U.S. Dist. LEXIS 12706 *7 (N.D.Cal., July 28, 1992). The Grid is used if an exertional disability is listed in it.Id. If "the non — exertional impairment is sufficiently severe," the Grid is inapplicable. King v. Commissioner of the SSA, 2000 U.S. Dist. LEXIS 8855 (D.Ore., May 11, 2000). "[I]f the claimant suffers from both exertional and non — exertional impairments, the procedure is more complicated. Id. First, the Grid must be consulted to see if the claimant can be found disabled based on his exertional impairments alone . . . Where a claimant's nonexertional limitations are in themselves enough to limit the 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."Berry v. Apfel 1999 U.S. Dist. LEXIS 4133 * 7 (N.D.Cal., March 26, 1999). In these situations the Grid is used as a framework,Id. Further, the plaintiff has the burden of proving her disability. Id.
The ALJ must follow the doctrine of resjudicata on the issues adjudicated in a previous claim. Chavez v. Bowen, 844 F.2d 691, 693; Lyle v. Secretary of Health and Human Services, 700 F.2d 566, 568. Winters claims that there was new evidence of her mental impairments which were reported by her treating doctor, Dr. Herring, and other doctors, as well as her own testimony. However, the ALJ already gave clear reasons for discrediting Dr. Herring's evaluation. Further, although Dr. Herring did conclude that she suffered from depression, he did not recommend treatment for it, neither did he claim that it was disabling. "The existence of emotional disorder, however, is not per se disabling."Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Winters' medical record notes from 1997 and 1998 show that other doctors reported she was depressed. TR 217, 221, 440, 485. These assessments of her mental condition were all conducted before her prior hearing with the previous ALJ, back on December 21, 1999. The ALJ in this case was bound by the decision of the previous ALJ as to the issues adjudicated at that time.
Winters also claims that she testified consistently at two separate hearings that she suffered from "disabling depression and stress." Plaint. Mot. for Summ. J. at 16:9-11. It is the decision of the ALJ to determine the credibility of the claimant, and here the ALJ found that Winters' "description of pain and limitation seemed vague and unconvincing" and he did not find her allegations credible. TR 23. The ALJ cannot find a claimant "disabled solely on subjective complaints of pain." Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991). The claimant must produce objective medical findings of the claimed disability. Id. at 344. At the hearing when the ALJ judge asked if Winters' emotional problems would interfere with her ability to work, she responded, "No, because that would keep me occupied." TR 57. Winters also stated that she has never asked for a referral to a psychologist to help with her depression. Winters provided no new medical evidence of her depression, and thus the ALJ properly did not address this issue. Since no mental impairment was found, it was proper for the ALJ to use the Grid in determining Winters' disability.
3. Credibility of claimant
A claimant must produce objective medical evidence of an underlying impairment, but corroboration of medical findings is not needed to assess the severity of the pain. Bunnell, 947 F.2d at 345. If a claimant meets the threshold requirement of producing objective medical evidence of an impairment that could produce the alleged symptoms to some degree and there is no evidence of malingering, an ALJ's rejection of subjective pain testimony must be supported by clear and convincing evidence.Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989) (self — serving complaints of pain need not be supported by objective medical evidence corroborating the degree of the pain involved). "Once the claimant establishes a medical impairment reasonably likely to be the cause of the pain, the Secretary directs the ALJ to consider `all of the available evidence' because the Secretary recognizes that `pain is subjective and not susceptible to measurement by reliable techniques.'"Bunnell 947 F.2d at 346, quoting SSR 88-13. SSR 88-13 lists several factors the ALJ should look at when he is assessing the credibility of the claimant's pain:
1. The nature, location, onset, duration, frequency, radiation, and intensity of any pain; 2. Precipitating and aggravating factors (e.g., movement, activity, environmental conditions); 3. Type, dosage, effectiveness, and adverse side — effects of any pain medication; 4. Treatment, other than medication, for relief of pain; 5. Functional restrictions; and 6. The claimant's daily activities.Id. at 346. The ALJ can use these to discredit the claimant's allegations. "For instance, if the claimant engages in numerous daily activities involving skills that could be transferred to the workplace, an adjudicator may discredit the claimant's allegations upon making specific findings relating to the claimant's daily activities." Id. at 346. Finally, resolution of conflicts in the evidence and testimony is a function solely for the ALJ. Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989).
The ALJ did not find Winters' "subjective allegations to be credible." TR 23. He cites specifically that (1) she has not worked since the late 1970s, (2) her lifestyle has not changed except that her children are now adults, (3) she has been living with the same man for eight years, (4) her pain started for no apparent reason, (5) there are no x-rays that show she has osteoarthritis although she is taking medication for it, and (6) her pain and limitation seemed "vague and unconvincing" because the orthopedic examiner found no atrophy but did find "cogwheeling and giving way." TR 23. The claim that she has not worked since 1970 can be considered by the ALJ in assessing a claimant's credibility. Schaal v. Apfel 134 F.3d 496, superseded on other grounds by Figueroa v. Apfel, 2000 U.S. Dist. LEXIS 5759 (S.D.N.Y., April 28, 2000). Therefore, the fact that Winters has not worked in over 20 years can be used as a factor in finding her not credible.
The ALJ also noted that the medications Winters takes to treat osteoarthritis are not typically used for the type of pain she alleges. There are no x-rays to show osteoarthritis nor are there "any other signs of that condition." TR 23. The ALJ also noted that there are no substantial changes in her life that might have brought about the her pain and aching. TR 23. However, the ME pointed out that because she suffers from Hepatitis C there would not be an obvious cause or onset of her symptoms. TR 101. Because she applied for SSI on May 8, 1998, and was denied, under res judicata, the ALJ must respect the decisions of previous courts unless there are "changed circumstances" since the last request for SSL Chavez v. Bowen, 844 F.2d at 693. The ALJ did not find that any of her "daily activities" have been limited.Bunnell 947 F.2d at 346.
The culmination of these factors led the ALJ to find that her testimony was not credible. The ALJ evaluated her situation, and found that there were several issues that do not stand up to the factors listed inBunnell. Since the "evidence admits of more than one rational interpretation, [the court] must uphold the decision of the ALJ."Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) (citingAllen v. Secretary of Health Human Services, 726 F.2d 1470.1473 (9th Cir. 1984)). This Court finds that the ALJ's decision that Winters was not credible is reasonable.
4. ALJ substitutes its own medical judgment
Winters claims that the ALJ rejected doctors' "findings and laboratory results and substitutes his own medical judgment for that of a physician." Plaint. Mot. for Summ. J. 2:25-26-3: 1-2. The ALJ is not allowed to use his own medical judgment in lieu of that of a medical expert. Forsman v. Chater, 1996 U.S. App. LEXIS 17649 * 7;Gonzalez Perez v. Secretary of Health and Human Services, 812 F.2d 747, 749 ("The ALJ may not substitute his own layman's opinion for the findings and opinion of a physician.") The ALJ concluded that Winter's alleged hand pain did not sound physiological because she stated that her entire hand was swollen, rather than only her fingers. TR 23. The testimony of doctors at the hearing does not even reference the issue of her swollen hand. Thus, the ALJ did err in making this conclusion himself. However, "in determining whether there is substantial evidence to support the examiner's finding a reviewing court must consider both evidence that supports, and evidence that detracts from, the examiner's conclusion. We cannot affirm the examiner's conclusion simply by isolating a specific quantum of supporting evidence." Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). The ALJ only used the allegations about her swollen hand as one of several factors when he discredited Winters' credibility. Because other factors the ALJ relied on in making his decision were sufficient, any error was harmless. Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1380 (9th Cir. 1984).
5. Medical expert's testimony
Winters alleges that the ALJ erred because he prevented the medical expert, Dr. Wasserman, from explaining his testimony at the hearing. Dr. Wasserman was a medical expert appointed by the ALJ. Winters claims that the ALJ rejected Dr. Wasserman's explanation of his diagnosis of her because it was favorable to her. "The hearing examiner is entrusted with a broad discretion in the conduct of the administrative hearing and a failure of the hearing to produce a full airing of the facts in issue may well be attributed to an abuse of that discretion." Hennig v. Gardner, 276 F. Supp. 622, 624-625 (N.D.Tex. 1967). When the claimant is not represented by counsel the ALJ must be "especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978), quoting Rosa v. Weinberger, 381 F. Supp. 377, 381 (E.D.N.Y. 1974). The ALJ must still fully develop the record even if the claimant is represented by counsel. Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). The ALJ abuses his discretion when he makes a judgment that is not based on the evidence from the record.Yang v. Shalala, 22 F.3d 213, 217 (9th Cir. 1994). The ALJ erred by not allowing Dr. Wasserman, the neutral Medical Expert, to continue his explanation of how Winters' objective medical findings fit within the Listings, thus allowing her to qualify for disability. The ALJ found that Dr. Wasserman's assessment of Winters' impairments listed in the Listing of Impairments set forth in Appendix 1 to Subpart P of Social Security Regulations No. 4, were not valid because "[Dr. Wasserman] was unable to explain why." TR 24. However, at the hearing, it is clear the ALJ would not allow Dr. Wasserman to explain why he thought Winters' problems fell within the listings.
ME: I think she meets the listing. She meets the listing, 14.06
ALJ: Doctor, there's no question —
ME: — for connective tissue disease.
ALJ: — pending to you.
ME: What's that?
ALJ: There's no question. Please be quiet.
TR 105. The ALJ stated that he called Dr. Wasserman to testify so that he could "set the record straight" whether Winters has rheumatoid arthritis or not. TR 106. It is the ALJ's responsibility to fully develop the record, and the ALJ cannot consider only one part of the testimony, but should hear the whole evaluation. The ALJ was too narrowly focused on what he was trying to prove and did not allow Dr. Wasserman to fully develop the record.
The ALJ disregarded several of the symptoms that Dr. Wasserman found when examining Winters. Although Dr. Wasserman found that she did not suffer from rheumatoid arthritis, he did find that the rheumatoid factor "is so much increased, there's no question she has an auto — immune inflammation." TR 98. He also found that the symptoms she complained about, "insomnia, arthritic pains, low energy . . . depression," are common when one has auto — immune inflammation. TR 99. Further, her neutrophils are below normal, which is another symptom common in people who have an auto — immune inflammation. TR 99. Dr. Wasserman also noted that some of her pain could be from Hepatitis C, which causes auto — immune problems. TR 101. The ALJ heard all of this testimony and chose to disregard it when deciding if Winters suffered a disability. He only used Dr. Wasserman's diagnosis that she does not have rheumatoid arthritis, thus discounting Dr. Herring's diagnosis, when making his decision. It is inconsistent for the ALJ to rely on the ME's opinion that Winters does not have rheumatoid arthritis, and then to ignore completely the ME's opinion that Winters does have another condition which qualifies her for benefits.
Since the ALJ did not allow Dr. Wasserman to finish the discussion on why Winters meets the Listing, and the ALJ only considered part of Dr. Wasserman's testimony, this Court ORDERS the case to be remanded for further evaluation of Winters' medical condition.
CONCLUSION
Winters' motion for remand because the ALJ did not allow the medical expert to fully develop the record is GRANTED and this action is REMANDED so the ALJ can more fully consider and respond to the medical findings and/or further develop the record regarding Winters' impairment and whether it meets or equals the criteria of an impairment in the Listing.
IT IS SO ORDERED.