(SS) Bolger v. Commissioner of Social Security

Opinion

JEFFREY BOLGER, No. 2:18-cv-2247 DB Plaintiff, v. ORDER ANDREW SAUL, Commissioner of Social Security,1 Defendant. This social security action was submitted to the court without oral argument for ruling on plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment.2 Plaintiff’s motion argues that the Administrative Law Judge improperly found plaintiff did not meet a listing impairment, erred in making a residual functional capacity determination, and improperly rejected medical opinion evidence. ////

1 Andrew Saul became the Commissioner of the Social Security Administration on June 17, 2019. See https://www.ssa.gov/agency/commissioner.html (last visited by the court on July 30, 2019). Accordingly, Andrew Saul is substituted in as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 2 Both parties have previously consented to Magistrate Judge jurisdiction over this action For the reasons explained below, plaintiff’s motion is granted, the decision of the Commissioner of Social Security (“Commissioner”) is reversed, and the matter is remanded for further proceedings consistent with this order. In June of 2014, plaintiff filed applications for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”) and for Supplemental Security Income (“SSI”) under Title XVI of the Act alleging disability beginning on June 22, 2012. (Transcript (“Tr.”) at 15, 265-73.) Plaintiff’s alleged impairments include major depressive disorder, bipolar disorder and a broken left tibia. (Id. at 113.) Plaintiff’s applications were denied initially, (id. at 180-88), and upon reconsideration. (Id. at 193-98.) Plaintiff requested an administrative hearing and a hearing was held before an Administrative Law Judge (“ALJ”) on October 11, 2016. (Id. at 35-69.) Plaintiff was represented by an attorney and testified at the administrative hearing. (Id. at 35-37.) In a decision issued on July 6, 2017, the ALJ found that plaintiff was not disabled. (Id. at 26.) The ALJ entered the following findings: 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013. 2. The claimant has not engaged in substantial gainful activity since June 22, 2012, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.). 3. The claimant has the following severe impairments: major depressive disorder; bipolar disorder; nonunion of the left tibial fracture resulting in intramedullary rod placement (20 CFR 404.1520(c) and 416.920(c)). 4. 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 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). 5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he is limited to standing and walking 4 hours total, sitting 6 hours total; no ladders; only occasional kneeling, crouching, crawling, and climbing stairs; frequent balance and stooping. He must avoid hazards such as unprotected heights and moving machinery; no more than occasional changes to the routine work setting, no more than occasional interactions with members of the public, coworkers and supervisors; limited to routine, repetitive work in a stable environment. 6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965). 7. The claimant was born [in] 1976 and was 35 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963). 8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964). 9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82- 41 and 20 CFR Part 404, Subpart P, Appendix 2). 10. 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 (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)). 11. The claimant has not been under a disability, as defined in the Social Security Act, from June 22, 2012, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)). (Id. at 17-26.) On June 26, 2018, the Appeals Council denied plaintiff’s request for review of the ALJ’s July 6, 2017 decision. (Id. at 1-5.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 405(g) by filing the complaint in this action on August 17, 2018. (ECF. No. 1.) “The district court reviews the Commissioner’s final decision for substantial evidence, and the Commissioner’s decision will be disturbed only if it is not supported by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). If, however, “the record considered as a whole can reasonably support either affirming or reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d 1072, 1075 (9th Cir. 2002). A five-step evaluation process is used to determine whether a claimant is disabled. 20 C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step process has been summarized as follows: 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. 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 v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Plaintiff’s pending motion asserts the following four principal claims: (1) the ALJ’s treatment of the medical opinion evidence constituted error; (2) the ALJ erred by finding plaintiff did not meet or equal Listing 1.06; (3) the ALJ failed to consider whether plaintiff needed a hand- //// //// held assistive device; and (4) the ALJ’s residual functional capacity determination was unexplained.3 (Pl.’s MSJ (ECF No. 14) at 6-12.4) I. Medical Opinion Evidence The weight to be given to medical opinions in Social Security disability cases depends in part on whether the opinions are proffered by treating, examining, or nonexamining health professionals. Lester, 81 F.3d at 830; Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). “As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant . . . .” Lester, 81 F.3d at 830. This is so because a treating doctor is employed to cure and has a greater opportunity to know and observe the patient as an individual. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir. 1990). The uncontradicted opinion of a treating or examining physician may be rejected only for clear and convincing reasons, while the opinion of a treating or examining physician that is controverted by another doctor may be rejected only for specific and legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d at 830-31. “The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician.” (Id. at 831.) Finally, although a treating physician’s opinion is generally entitled to significant weight, “‘[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.’” Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)). Here, plaintiff challenges the ALJ’s treatment of the opinion offered by treating physician Dr. Paul Gregory. (Pl.’s MSJ (ECF No. 14) at 9-10.) The ALJ discussed Dr. Gregory’s opinion as follows: 3 The court has reordered plaintiff’s arguments for purposes of clarity and efficiency. 4 Page number citations such as this one are to the page number reflected on the court’s CM/ECF Paul Gregory, M.D., the claimant’s orthopedist5, opined that the claimant can occasionally lift and/or carry less than 10 pounds; frequently lift and/or carry less than 10 pounds; stand and/or walk for less than 2 hours in an 8-hour workday with crutches; sit for 6 hours in an 8-hour workday; needs to alternate standing and sitting; never climb, balance, stoop, kneel, crouch, or crawl; and has restrictions with heights, moving machinery, temperature extremes, chemicals, and dust. I accord little weight to this opinion because it is not consistent with the record as a whole, e.g., generally unremarkable physical examinations (excellent range of motion, no neurological deficits) as discussed above. Moreover, the opinion expressed is quite conclusory, providing very little explanation of the evidence relied on in forming that opinion. The ALJ’s analysis is erroneous, [t]o say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim. The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors’, are correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988); see also Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999) (“The ALJ must set out in the record his reasoning and the evidentiary support for his interpretation of the medical evidence.”); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (“Broad and vague” reasons for rejecting the treating physician’s opinion do not suffice). Moreover, Dr. Gregory’s opinion is no less conclusory than the ALJ’s evaluation of Dr. Gregory’s opinion. In this regard, Dr. Gregory’s Medical Source Statement repeatedly cited to plaintiff’s chronic infection and nonunion of the left tibia in support of the limitations assessed. (Tr. at 1021-25.) That is consistent with Dr. Gregory’s treatment notes. While it is true that Dr. Gregory found plaintiff had “excellent range of motion,”—as vaguely referenced by the ALJ’s decision—that is at best an incomplete picture of Dr. Gregory’s findings and opinion. In this regard, following an examination Dr. Gregory spoke to plaintiff

5 The opinions of medical specialists regarding the specialist’s area of expertise “are given more weight than the opinions of a nonspecialist.” Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); see also Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (“Each rheumatologist’s opinion is given greater weight than those of the other physicians because it is an opinion of a about “the complex nature of a chronic infected nonunion with retained hardware.” (Id. at 895.) Dr. Gregory explained that it would be “difficult to solve both of [plaintiff’s] problems simultaneously.” (Id.) Instead, Dr. Gregory recommended first addressing the chronic infection, through “6 weeks of IV intravenous antibiotics” followed by a “surgical procedure for intramedullary nail removal and intramedullary local debridement of the infected site[.]” (Id.) Dr. Gregory stressed against the use of “any replacement hardware until [plaintiff’s] infection” was “eradicated.” (Id.) Plaintiff was also advised to “obtain a fracture walking Aircast” in anticipation of “gradual increase weightbearing postoperatively.” (Id.) Additionally, when an ALJ elects to afford the opinion of a treating physician less than controlling weight, the opinion must be “weighted according to factors such as the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability, consistency with the record, and specialization of the physician.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing 20 C.F.R. § 404.1527(c)(2)-(6)). The ALJ’s failure to discuss these factors “alone constitutes reversible legal error.” (Id. at 676.) Accordingly, for the reasons stated above, the court finds that the ALJ failed to offer a specific and legitimate, let alone clear and convincing, reason for rejecting Dr. Gregory’s opinion. Plaintiff is, therefore, entitled to summary judgment on the claim that the ALJ’s treatment of the medical opinion evidence constituted error. II. Listing Error Plaintiff also argues that the ALJ erred by failing to find that plaintiff’s impairments met or equaled Listing 1.06. (Pl.’s MSJ (ECF No. 14) at 6-8.) At step three of the sequential evaluation, the ALJ must determine whether a claimant’s impairment or impairments meet or equal one of the specific impairments set forth in the Listings. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The physical and mental conditions contained in the Listings are considered so severe that “they are irrebuttably presumed disabling, without any specific finding as to the claimant’s ability to perform his past relevant work or any other jobs.” Lester v. Chater, 81 F.3d 821, 828 (9th Cir. 1995). The Listings were “designed to operate as a presumption of disability that makes further inquiry unnecessary.” Sullivan v. Zebley, 493 U.S. 521, 532 (1990); see also Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). If a claimant shows that her impairments meet or equal a Listing, she will be found presumptively disabled. 20 C.F.R. §§ 404.1525-404.1526, 416.925-416.926. Listing 1.06 is applicable where there is a “[f]racture of the tibia . . . . [w]ith . . . [i]nability to ambulate effectively, as defined in 1.00B2b, and return to effective ambulation did not occur or is not expected to occur within 12 months of onset.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.06. “Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual’s ability to independently initiate, sustain, or complete activities.” Id. at § 1.00B2b(1). Here, the ALJ addressed Listing 1.06 as follows: After consideration of the evidence, detailed below, I conclude that the severity of the claimant’s physical impairments, either singly or in combination, does not meet the specific criteria of section[] . . . 1.06 (fracture of a lower limb). No treating or examining physician has mentioned findings equivalent in severity to the criteria of any listed impairment, nor does the evidence show medical findings that are the same or equivalent to those of any listed impairment of the Listing of Impairments. (Tr. at 18.) That is the entirety of the ALJ’s analysis. “An ALJ must evaluate the relevant evidence before concluding that a claimant’s impairments do not meet or equal a listed impairment.” Lewis, 236 F.3d at 512 (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (“We hold that, in determining whether a claimant equals a listing under step three of the Secretary’s disability evaluation process, the ALJ must explain adequately his evaluation of alternative tests and the combined effects of the impairments.”)). Moreover, an “ALJ must provide a discussion of the evidence and an explanation of reasoning for his conclusion sufficient to enable meaningful judicial review.” Diaz v. Commissioner of Social Sec., 577 F.3d 500, 504 (3rd Cir. 2009) (quotation omitted); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (“The ALJ’s decision regarding the applicability of Listing 1.04A is devoid of reasoning. . . . This insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ’s findings.”). Here, the ALJ’s vague and conclusory reasoning is inadequate. Accordingly, the court finds that plaintiff is also entitled to summary judgment with respect to the claim that the ALJ erred at step three of the sequential evaluation by failing to consider Listing 1.06. III. Hand-Held Assistive Device Plaintiff next argues that the ALJ’s decision “fails to say anything about [plaintiff’s] need for an assistive device,” that such a limitation should have been included in the residual functional capacity (“RFC”) determination, and in the hypothetical question to the Vocational Expert (“VE”). (Pl.’s MSJ (ECF No. 14) at 8-9.) At step five of the sequential evaluation, “the Commissioner has the burden ‘to identify specific jobs existing in substantial numbers in the national economy that a claimant can perform despite his identified limitations.’” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (quoting Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995)) (alterations omitted). The ALJ can meet her burden by either taking the testimony of a Vocational Expert (“VE”) or by referring to the grids. See Lounsburry v. Barnhart, 468 F.3d 1111, 1114-15 (9th Cir. 2006). Here, the ALJ relied on the testimony of a VE. (Tr. at 25.) While an ALJ may pose a range of hypothetical questions to a VE based on alternate interpretations of the evidence, the hypothetical question that ultimately serves as the basis for the ALJ’s determination, i.e., the hypothetical question that is predicated on the ALJ’s final residual functional capacity assessment, must account for all of the limitations and restrictions of the particular claimant. Bray, 554 F.3d at 1228. “If an ALJ’s hypothetical does not reflect all of the claimant’s limitations, then the expert’s testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy.” Id. (citation and quotation marks omitted); see also Taylor, 659 F.3d at 1235 (“Because neither the hypothetical nor the answer properly set forth all of Taylor’s impairments, the vocational expert’s testimony cannot constitute substantial evidence to support the ALJ’s findings.”). //// Plaintiff’s treating physician, Dr. Gregory, opined that plaintiff required a hand-held assistive device. (Tr. at 1024.) Presumably because the ALJ rejected Dr. Gregory’s opinion, the ALJ’s hypothetical question to the VE did not account for the need for a hand-held assistive device. (Tr. at 60-67.) Accordingly, plaintiff is also entitled to summary judgment on the claim that the ALJ committed an error at step five of the sequential evaluation. With error established, the court has the discretion to remand or reverse and award benefits.6 McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded under the “credit-as-true” rule for an award of benefits where: (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. Garrison, 759 F.3d at 1020. Even where all the conditions for the “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits.”); Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where . . . an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency.”). ////

6 Having identified errors requiring remand, upon review of the record, and in light of plaintiff’s argument that simply “the decision should be reversed,” the court finds it unnecessary to reach plaintiff’s remaining claim. (Pl.’s MSJ (ECF No. 14) at 12). See Janovich v. Colvin, No. 2:13- cv-0096 DAD, 2014 WL 4370673, at *7 (E.D. Cal. Sept. 2, 2014) (“In light of the analysis and conclusions set forth above, the court need not address plaintiff’s remaining claims of error.”); Manning v. Colvin, No. CV 13-4853 DFM, 2014 WL 2002213, at *2 (C.D. Cal. May 15, 2014) (“Because the Court finds that the decision of the ALJ must be reversed on the basis of the Here, the court cannot find that further proceedings would serve no useful purpose. Thus, this matter must be remanded for further proceedings. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's motion for summary judgment (ECF No. 14) is granted; 2. Defendant’s cross-motion for summary judgment (ECF No. 19) is denied; 3. The Commissioner’s decision is reversed; and 4. This matter is remanded for further proceedings consistent with this order. Dated: March 24, 2020

ll -BORAH BARNES UNITED STATES MAGISTRATE JUDGE DLB:6 DB\orders\orders.soc sec\bolger2247.ord 11