Casiano v. Colvin

Decision Date26 July 2016
Docket NumberCASE NO. 2:15-CV-01708-TSZ-DWC
CourtU.S. District Court — Western District of Washington
PartiesSUZANNE CASIANO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT
Noting Date: August 12, 2016

The District Court has referred this action, filed pursuant to 42 U.S.C. § 405(g), to United States Magistrate Judge David W. Christel. Plaintiff seeks judicial review of the denial of Plaintiff's application for Disability Insurance Benefits ("DIB").

The Court concludes the Administrative Law Judge ("ALJ") erred by failing to properly evaluate the opinions of one examining physician and two state agency medical consultants. Therefore, the undersigned recommends the entry of an Order reversing the ALJ's decision, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings.

PROCEDURAL & FACTUAL HISTORY

On October 23, 2012, Plaintiff filed an application for DIB. See Dkt. 9, Administrative Record ("AR") 12, 203, 205, 207. Plaintiff alleges she became disabled on January 10, 2009, due to a failed L5-S1 fusion, rheumatoid arthritis, osteoarthritis, and other physical and mental conditions. AR 228, 232. Plaintiff's application was denied upon initial administrative review and on reconsideration. See AR 78, 104. A hearing was held before an ALJ on May 6, 2014, at which Plaintiff, represented by counsel, appeared and testified. See AR 31.

On June 20, 2014 the ALJ issued his decision, finding Plaintiff was not disabled within the meaning of Sections 216(i) and 223(d) of the Social Security Act. AR 24. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on September 3, 2015, making that decision the final decision of the Commissioner of Social Security (the "Commissioner"). See AR 1, 20 C.F.R. § 404.981, § 416.1481. On October 29, 2015, Plaintiff filed a Complaint seeking judicial review of the Commissioner's final decision. Dkt. 1.

Plaintiff argues the denial of benefits should be reversed and remanded for payment of benefits or, in the alternative, for further proceedings, because the ALJ: (1) erred in rejecting the opinions of several medical professionals; (2) erred in evaluating Plaintiff's credibility; and (3) improperly found that Plaintiff could perform past relevant work or, alternatively, other work that exists in significant numbers in the economy. Dkt. 11, pp. 2-19.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits only if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). "Substantial evidence" ismore than a scintilla, less than a preponderance, and is such "'relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)).

DISCUSSION
I. Whether the ALJ Properly Evaluated the Medical Opinion Evidence.
A. Standard

The ALJ has the responsibility to determine credibility and resolve ambiguities and conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1988). Where the medical evidence in the record is not conclusive, "questions of credibility and resolution of conflicts" are solely the functions of the ALJ. Sample v. Schweiker, 694 F.2d 639, 942 (9th Cir. 1982). Determining whether or not inconsistencies in the medical evidence "are material (or are in fact inconsistencies at all) and whether certain factors are relevant to discount" the opinions of medical experts "falls within this responsibility." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999).

The ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of either a treating or examining physician or psychologist. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). However, "[i]n order to discount the opinion of an examining physician in favor of the opinion of a nonexamining medical advisor, the ALJ must set forth specific, legitimate reasons that are supported by substantial evidence in the record." Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir. 1996) (citing Lester, 81 F.3d at 831). The ALJ can accomplish this by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Reddick, 157 F.3d, at725 (citing Magallanes, 881 F.2d at 751). In addition, the ALJ must explain why the ALJ's own interpretations, rather than those of the doctors, are correct. Reddick, 157 F.3d at 725 (citing Embrey, 849 F.2d at 421-22). The ALJ "may not reject 'significant probative evidence' without explanation." Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (quoting Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981))). The "ALJ's written decision must state reasons for disregarding [such] evidence." Flores, 49 F.3d at 571.

B. Application of Standard
1. Raymond West, M.D.

Dr. West examined Plaintiff on September 12, 2011. AR 408. During the evaluation, Plaintiff described a history of a fracture of L3, L4, and L5 and associated low back surgery. AR 408. Plaintiff described lower lumbar pain radiating bilaterally to both legs, ranging from 6 to 10 on the pain scale. AR 409. Plaintiff also described left-hand osteoarthritis which has impaired her ability to use her left hand. AR 409. On physical examination, Dr. West noted Plaintiff favored her right side when sitting in a chair and on the examination table. AR 410. Dr. West also noted Plaintiff exhibited difficulties performing a range of diagnostic exercises, including walking heel-to-toe, standing on one foot, standing on toes, squatting and back bending. AR 411. Specifically, Plaintiff demonstrated "10% of normal" squatting, reduced range of back bending, and slow pace with apparent pain. AR 411. Plaintiff had positive bilateral straight leg raise tests, poor left-hand grip, and was unable to jump and demonstrate shoulder joint range of motion. AR 411-12. At several points, Plaintiff cried during examination. AR 411-12.

Dr. West diagnosed Plaintiff with: painful left shoulder, status post injury; painful back, status post injury; painful right thumb, etiology uncertain; painful right hand and wrist, etiologyuncertain; history of connective tissue disorder, exact nature uncertain; insomnia; and depression. AR 412. As a result of these impairments, Dr. West opined Plaintiff would be able to sit for up to four hours in an eight-hour day, provided she was in a comfortable chair and could move about for short periods. AR 413. Dr. West further opined Plaintiff would be able to lift 15 pounds across a room occasionally, lift 10-12 pounds less frequently from room to room, would be able to grasp and hold small light objects on an infrequent basis, and should not squat, kneel, crawl, climb, push, or pull, except in emergencies. AR 413. Finally, Dr. West opined Plaintiff would be able to stand no more than 20 minutes and walk no more than a mile at a time, and could stand or walk for no more than three to four hours in an eight hour work day. AR 412. However, in discussing Plaintiff's standing and walking limitations, Dr. West indicated "if imaging studies become available, this opinion may require qualification." AR 412.

The ALJ gave little weight to Dr. West's opinion for the following three reasons:

[1][Dr. West's opinion is] based on the claimant's self-reports and [2] [is] not consistent with the medical findings in the record as a whole. As noted above, the claimant's alleged limitations are not credible. [3] Dr. West notes that his opinion of the claimant's physical limitations may change if imaging studies become available. ([AR 412]). On January 20, 2014, magnetic resonance imaging showed no significant findings of the low back to account for the claimant's complaints of constant daily back pain. ([AR 591]).

AR 21 (numbering added). Plaintiff argues these were not specific and legitimate reasons for the ALJ to give little weight to Dr. West's opinion, and the Court agrees.

First, an ALJ may discount a physician's opinion "if it is based 'to a large extent' on a claimant's self-reports that have been properly discounted as incredible." Tommaseti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Morgan, 169 F.3d at 602). However, this is distinguishable from a situation where the doctor provides his or her own observations in support of the opinion. See Ryan v. Comm'r of Soc. Sec. Admin., 528 F.3d 1194, 1199-1200 (9th Cir.2008) ("an ALJ does not provide clear and convincing reasons for rejecting an examining physician's opinion by questioning the credibility of the patient's complaints where the doctor does not discredit those complaints and supports his ultimate opinion with his own observations"); see also Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). "When an opinion is not more heavily based on a patient's self-reports than on clinical observations, there is no evidentiary basis for rejecting the opinion." Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Here, Dr. West documented Plaintiff's subjective history and experience of pain; however, Dr. West also conducted a physical examination, where he noted positive straight leg raise testing, reduced ability to squat, and reduced left-hand grip strength. AR 410-12. There is no indication the ALJ relied "more heavily" on Plaintiff's self reports than on his own physical examination findings when assessing Plaintiff's limitations. See Ghanim, 763 F.3d at 1162....

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