Ahner v. Colvin

• Decision Date: 20 December 2013
• Docket Number: No. 2:12-cv-2327 AC,2:12-cv-2327 AC
• Parties: DEBARA LEE AHNER, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Eastern District of California

DEBARA LEE AHNER, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

No. 2:12-cv-2327 AC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: December 20, 2013

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("the Act"). Plaintiff's motion for summary judgment and defendant's motion for remand are pending. For the reasons discussed below, the court will grant defendant's motion for remand and will grant in part plaintiff's motion for summary judgment.

PROCEDURAL BACKGROUND

Plaintiff filed an application for SSI on March 16, 2009, alleging disability beginning on January 1, 2006, though this date was later amended to February 25, 2009. Administrative Record ("AR") 136-44, 231. Plaintiff's application was denied initially and again upon reconsideration. AR 94-98, 103-07. On August 24, 2010, a hearing was held before administrative law judge ("ALJ") Jean Kerins. AR 54-85. Plaintiff appeared with attorneyrepresentation at the hearing, at which she and a vocational expert, David Dettmer, testified. See id. In a decision dated November 24, 2010, the ALJ issued a decision partially favorable to plaintiff in that the ALJ determined that plaintiff was disabled, but not prior to June 24, 2010. AR 17-32. The ALJ made the following findings (citations to 20 C.F.R. omitted):

1. The claimant has not engaged in substantial gainful activity since the alleged onset date.

2. Since the alleged onset date of disability, January 1, 2006, the claimant has had the following severe impairments: chronic kidney disease, history of drug and alcohol abuse, hypertension, and borderline intellectual functioning. Beginning on the established onset date of disability, June 24, 2010, the claimant has had the following severe impairment: end stage renal failure.

3. Prior to June 24, 2010, the date the claimant became disabled, the claimant did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.

4. After careful consideration of the entire record, the undersigned finds that prior to June 24, 2010, the date the claimant became disabled, the claimant had the residual functional capacity to perform light word as defined in 20 CFR 416.967(b) except the claimant could lift 10 pounds frequently and occasionally; stand and/or walk for 2 hours per day; walk up to four hours in an eight-hour day for prolonged distances or on uneven terrain with an assistive device; sit for six hours per eight-hour day; could not climb ladders and/or rope, occasional balancing, stooping, crawling and/or kneeling, avoid moderate exposure to hazards; occasionally climb ramps and/or stairs; and was able to understand simple instructions involving no public contact.

5. The claimant has no past relevant work.

6. Prior to the established disability onset date, the claimant was a younger individual age 18-49.

7. The claimant has a marginal education and is able to communicate in English.

8. Transferability of job skills is not an issue in this case because the claimant does not have past relevant work.

9. Prior to June 24, 2010, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed.

10. Beginning on June 24, 2010, the severity of the claimant's impairment has met the criteria of section 6.02 (entitled Impairment of renal function), CFR Part 404, Subpart P, Appendix 1.

11. The claimant is not disabled prior to June 24, 2010, but became disabled on that date and has continued to be disabled through the date of this decision.

12. The claimant's substance use disorder is not a contributing factor material to the determination of disability.

AR 17-32.

Plaintiff requested review of the ALJ's decision by the Appeals Council, but the Council denied review on July 11, 2012, leaving the ALJ's decision as the final decision of the Commissioner of Social Security. AR 5-7.

FACTUAL BACKGROUND

Born on February 24, 1961, AR 136, plaintiff was 44 years old on the alleged onset date of disability and 49 years old at the time of the administrative hearing. Plaintiff has an eighth grade education, AR 58, and lacked a work history, AR 61.

LEGAL STANDARDS

The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "It means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir.2006) (citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supportsand the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec' y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir.1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.1985).

"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). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.2007); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

The court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate nondisability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir.2006) (quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

ANALYSIS

Plaintiff seeks summary judgment on the grounds that: (1) the ALJ failed to credit a treating physician's opinion without legitimate reasons; (2) the ALJ failed to utilize the services of a medical expert to establish the onset of disability; (3) the ALJ failed to credit plaintiff's testimony and third party statements as to the nature and extent of her functional limitations; and (4) the ALJ failed to pose a hypothetical based on her own residual functional capacity assessment and failed to credit the vocational expert's testimony in response to the hypothetical question which plaintiff contends most accurately reflects her limitations.

The Commissioner appears to concede that the ALJ erred in not utilizing the services of a medical expert to establish the onset of disability and therefore seeks remand on that ground.

A. Opinion of Treating Physician

On July 16, 2010, plaintiff's treating physician, Dr. Subil Go, performed a residualfunctional capacity ("RFC") evaluation of plaintiff. AR 719-22. Dr. Go noted that he had been treating plaintiff for three years, every 1-3 months, and his principal diagnosis was end stage renal failure on dialysis with a secondary diagnosis of viral hepatitis. In assessing plaintiff's functional limitations, Dr. Go determined that plaintiff can stand/walk and sit uninterrupted for 2 hours in an 8-hour workday; is limited to 2-hour workdays; can occasionally bend and balance, but can never climb, stoop, crouch, crawl or kneel; can only lift and carry 1-5 pounds occasionally, but never any weight beyond that; and can occasionally reach, handle and finger with her hands. Because of plaintiff's dialysis, she had environmental limitations, including limitations being around heights, moving machinery, and chemicals. Dr. Go also determined that plaintiff would need to lie down, sleep or rest every 2-3 hours. Dr. Go based these limitations on "blood work," "physical exam," and "exam." He indicated his belief that plaintiff has been unable to do any type of work since January 2009.

Regarding Dr. Go's opinion concerning the onset date of plaintiff's disability, the ALJ wrote: "Treating physician, Subil Go, M.D. opined that the claimant's impairments became disabling in 2007. While treating physician's opinions are generally given controlling weight, Dr. Go's opinion expressed is quite conclusory, providing very little explanation of the evidence relied on in forming that opinion." AR 27. Plaintiff contends this was in error.

The opinions of treating physicians are generally given greater weight than those of other physicians because of the treating physicians' intimate knowledge of the claimant's condition. Aukland v. Massanari, 257 F.3d 1033, 1037 (9th Cir. 2001). In order to reject the opinion of a treating physician, the ALJ is required to show specific and legitimate reasons based on...