(SS) Halloran v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: March 27, 2020
• Docket: 2:18-cv-03230
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 MICHELLE C. HALLORAN, No. 2:18-cv-3230-EFB 11 Plaintiff, 12 v. ORDER 13 ANDREW SAUL, Commissioner of Social Security 14 Defendant. 15 16 17 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 18 (“Commissioner”) denying her application for a period of disability and Disability Insurance 19 Benefits (“DIB”) under Title II of the Social Security Act. The parties have filed cross-motions 20 for summary judgment. ECF Nos. 15 & 18. For the reasons discussed below, plaintiff’s motion 21 for summary judgment is granted, the Commissioner’s motion is denied, and the matter is 22 remanded for further proceedings. 23 I. Background 24 Plaintiff filed an application for a period of disability and DIB, alleging that she had been 25 disabled since March 24, 2015. Administrative Record (“AR”) at 188-89. After her application 26 was denied initially and upon reconsideration (id. at 85-88, 93-98), a hearing was held before 27 administrative law judge (“ALJ”) Daniel G. Heely (id. at 33-60). Plaintiff was represented by 28 counsel at the hearing, at which she and a vocational expert testified. Id. 1 On December 11, 2017, the ALJ issued a decision finding that plaintiff was not disabled 2 under sections 216(i) and 223(d) of the Act.1 Id. at 20-28. The ALJ made the following specific 3 findings:

4 1. The claimant meets the insured status requirements of the Social Security Act through 5 September 30, 2020.

6 2. The claimant has not engaged in substantial gainful activity since March 24, 2015, the alleged onset date (20 CFR 404.1571 et seq.). 7 3. The claimant has the following severe impairments: status post right upper extremity 8 surgery; status post multiple breast surgeries (20 CFR 404.1520(c)).

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11 1 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 (“SSI”) is paid 12 to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to 13 “a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. 14 §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The 15 following summarizes the sequential evaluation:

16 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed 17 to step two. Step two: Does the claimant have a “severe” impairment? 18 If so, proceed to step three. If not, then a finding of not disabled is 19 appropriate. Step three: Does the claimant’s impairment or combination 20 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 21 determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past 22 work? If so, the claimant is not disabled. If not, proceed to step 23 five. Step five: Does the claimant have the residual functional 24 capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25

26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential 28 evaluation process proceeds to step five. Id. 1 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 2 P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

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4 5. After careful consideration of the entire record, the undersigned finds that the claimant has 5 the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except can never climb ladders, ropes, or scaffolds; can occasionally climb ramps or 6 stairs; can occasionally balance, stoop, kneel, or crouch but never crawl; can never work around hazards (such as moving, dangerous machinery or unprotected heights; no 7 operation of motor vehicles); with the right dominant upper extremity, can engage in no more than occasional fingering/handling and no pushing/pulling. 8

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10 6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).

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12 7. The claimant was born [in] 1978 and was 36 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563). 13 8. The claimant has at least a high school education and is able to communicate in English 14 (20 CFR 404.1564). 15 9. Transferability of job skills is not material to the determination of disability because using 16 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 17 CFR Part 404, Subpart P, Appendix 2). 18 10. Considering the claimant’s age, education, work experience, and residual functional 19 capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)). 20 * * * 21 11. The claimant was not under a disability, as defined in the Social Security Act, from March 22 24, 2015, through the date of this decision (20 CFR 404.1520(g)). 23 Id. at 22-28. 24 Plaintiff’s request for Appeals Council review was denied on October 24, 2018, leaving 25 the ALJ’s decision as the final decision of the Commissioner. Id. at 1-6. 26 ///// 27 ///// 28 1 II. Legal Standards 2 The Commissioner’s decision that a claimant is not disabled will be upheld if the findings 3 of fact are supported by substantial evidence in the record and the proper legal standards were 4 applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); 5 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 6 180 F.3d 1094, 1097 (9th Cir. 1999). 7 The findings of the Commissioner as to any fact, if supported by substantial evidence, are 8 conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is 9 more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th 10 Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a 11 conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 12 N.L.R.B., 305 U.S. 197, 229 (1938)). 13 “The ALJ is responsible for determining credibility, resolving conflicts in medical 14 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 15 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 16 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 17 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 18 III. Analysis 19 Plaintiff argues that the ALJ erred in (1) rejecting the opinion of her treating physician, (2) 20 finding she can occasionally perform fingering and handling with her right upper extremity, (3) 21 rejecting her subjective complaints absent clear and convincing reasons, and (4) rejecting lay 22 testimony without sufficient justification. As explained below, the ALJ erred in rejecting the 23 opinion from plaintiff’s treating physician. 24 A. Relevant Legal Standards 25 The weight given to medical opinions depends in part on whether they are proffered by 26 treating, examining, or non-examining professionals. Lester, 81 F.3d at 834. Ordinarily, more 27 weight is given to the opinion of a treating professional, who has a greater opportunity to know 28 and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1 1996). To evaluate whether an ALJ properly rejected a medical opinion, in addition to 2 considering its source, the court considers whether (1) contradictory opinions are in the record; 3 and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a 4 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 5 F.3d at 831. In contrast, a contradicted opinion of a treating or examining medical professional 6 may be rejected for “specific and legitimate” reasons that are supported by substantial evidence. 7 Id. at 830. While a treating professional’s opinion generally is accorded superior weight, if it is 8 contradicted by a supported examining professional’s opinion (e.g., supported by different 9 independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 10 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 11 However, “[w]hen an examining physician relies on the same clinical findings as a treating 12 physician, but differs only in his or her conclusions, the conclusions of the examining physician 13 are not ‘substantial evidence.’” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 14 B. Background 15 In March 2015, plaintiff sought treatment for right wrist pain. AR 328. Medical records 16 reflect plaintiff had a history of recurrent giant cell tumor at the distal radius requiring multiple 17 surgeries, including a total fusion of the right wrist. Id. at 328, 337. An x-ray revealed a fracture 18 of the distal fusion plate due to lack of carpal fusion, which was suspected to be the cause of 19 plaintiff’s wrist pain. Id. at 329-34. Plaintiff’s wrist impairment was initially treated 20 conservatively with a Kenalog and lidocaine injection, which was failed to relieve her pain. Id. at 21 335-37. Plaintiff was subsequently evaluated by Dr. Michael Macavoy, an orthopedic surgeon, 22 who noted instability in plaintiff’s right distal radial ulnar joint. Id. at 345, 375. 23 In early June 2015, plaintiff underwent surgery to replace the right distal radial ulnar joint 24 and remove existing distal hardware. Id. at 372-77. Physical therapy notes from one month after 25 the surgery documented functional deficits in griping, grasping, pushing, pulling, lifting, and 26 carrying with the right hand, as well as complaints of pain and difficulty dressing and grooming. 27 Id. at 473. In early August 2015, plaintiff reported she was still experiencing “lots of pain” and 28 swelling. Id. at 481. Although plaintiff completed her physical therapy approximately a week 1 later, she continued to report constant pain in her right wrist. Id. at 484-85. Treatment notes from 2 November 2015 reflect that plaintiff was able to successfully wean off her narcotic pain 3 medication, but she continued to report wrist pain with activity. Id. at 854. Examination of her 4 wrist was largely unremarkable, with only some tenderness on the ulnar side and Tinel signs on 5 the ulnar nerve. Id. at 854. At that time, Dr. Macavoy noted plaintiff’s joint replacement 6 appeared stable and that it was “not clear exactly why” plaintiff’s wrist was still hurting. Id. at 7 854-55. 8 In January 2016, Dr. Macavoy completed a medical source statement, which states that he 9 had been treating plaintiff’s right wrist pain since 2005. Id. at 816-17. It was Dr. Macavoy’s 10 opinion that plaintiff was limited to performing less than sedentary work due to limitation in 11 lifting, fingering, and reaching. Id. at 816. He explained that plaintiff was unable to use her right 12 wrist/hand due to experiencing “pain by just moving [her] right upper extremity.” Id. at 817. 13 The record also contains opinions from two non-examining physicians, Dr. L. Kiger and 14 Dr. L. C. Chiang. Conflicting with Dr. Macavoy’s opinion, both of these non-examining 15 physicians opined that plaintiff could lift 20 pound occasionally and 10 pounds frequently; stand 16 and/or walk about 6 hours in an 8-hour workday; sit about 6 hours in an 8-hour workday; never 17 climb ladders, ropes, or scaffolds; occasionally crawl; and could occasionally perform handling 18 and fingering, but never pushing or pulling, with her right upper extremity. Id. at 68-69, 79-80. 19 In assessing plaintiff’s RFC, the ALJ rejected Dr. Macavoy’s opinion in favor of the 20 opinions provided by Dr. Kiger and Dr. Chiang. Id. at 25. 21 C. Discussion 22 As argued by plaintiff, the ALJ failed to provide specific and legitimate reasons supported 23 by substantial for rejecting Dr. Macavoy’s treating opinion. 24 First, the ALJ found that Dr. Macavoy’s opinion was “not persuasive in light of the 25 claimant’s actual use of her right upper extremity, as detailed above.” AR 28. But the ALJ’s 26 decision did not identify any activities that plaintiff specifically performed with her right hand. 27 For instance, the ALJ observed that plaintiff goes outside, socializes, attends church, and is able 28 to count change, none of which required plaintiff to use her right (or even left) hand. The ALJ 1 also observed that plaintiff is able to go shopping. Id. at 24. But the record indicates that 2 plaintiff’s husband and son usually helped her shopping, and there is nothing in the record 3 suggesting plaintiff even infrequently used her right upper extremity while performing this 4 activity. The ALJ also observed that plaintiff was able to drive a car, but he failed to note that all 5 evidence of record showed that she only used her left hand while driving. Id. at 40, 244, 253. 6 The ALJ’s decision also noted plaintiff was a volunteer cheerleading coach. But the portion of 7 the record discussing plaintiff’s involvement in cheerleading also states that plaintiff volunteered 8 to be a coach under an agreement that she would not have to use her hand. Id. at 257. Plaintiff 9 also explained that her coaching role primarily involved providing verbal instructions to children. 10 Id. Lastly, the ALJ specifically acknowledged that plaintiff “cares for minor children and 11 completes personal care with the left hand. She makes meals and does chores with the left hand.” 12 Id. at 24. Thus, the ALJ’s decision does not discuss any evidence demonstrating plaintiff’s actual 13 use of her right hand that provides specific and legitimate reasons for rejecting Dr. Macavoy’s 14 treating opinion. 15 The ALJ also rejected Dr. Macavoy’s opinion because it was “conclusory, lacking 16 analysis, explanation, or citation to the medical record.” AR 25. An ALJ may reject a treating 17 physician’s opinion “that is brief, conclusory, and inadequately supported by clinical findings.” 18 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Dr. Macavoy’s opinion was obtained by 19 way of a check-the-box form that was provided to him for such use. But he did not merely check 20 the boxes. The form he completed also included written explanations for the opinion provided, 21 which was properly explained and supported. Specifically, Dr. Macavoy stated that his opinion 22 was supported by plaintiff’s right wrist arthroplasty and history of giant cell tumor in the bone of 23 her wrist. AR 816. He also noted that plaintiff experiences “pain by just moving [her] right 24 upper extremity.” Id. at 817. Thus, contrary to the ALJ’s finding, Dr. Macavoy did provide an 25 explanation for his opinion that plaintiff was limited to less than sedentary work due to an 26 inability to perform lifting, fingering, and reaching. 27 But even if Dr. Macavoy had failed to identify the basis for his opinion, a lack of 28 explanation would not constitute a specific and legitimate reason for rejecting his opinion under 1 the circumstances of this case. As noted above, the ALJ rejected Dr. Macavoy’s opinion in favor 2 of the opinions from Dr. Kiger and Dr. Chiang. Neither of these physicians provided a detailed 3 explanation of the evidence supporting their opinions. To reject a treating opinion on the basis 4 that it is conclusory and unsupported in favor of a non-examining opinion that is, at the very least, 5 equally conclusory is not a legitimate reason for discounting the treating doctor’s opinion. See 6 Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 379 (6th Cir. 2013) (holding that the ALJ’s 7 “failure to apply the same level of scrutiny to the opinions of the consultative doctors on which he 8 relied, let alone the greater scrutiny of such sources called for by 20 C.F.R. § 404.1527, further 9 demonstrates that his assessment of Dr. Onady’s opinions failed to abide by the Commissioner’s 10 regulations and therefore calls into question the ALJ’s analysis.”). 11 Lastly, the ALJ rejected Dr. Macavoy’s opinion because it was “contradicted by the other 12 medical experts.” AR. The only other medical opinions addressing plaintiff’s physical 13 limitations were from Dr. Kiger and Dr. Chiang. These non-examining opinions do not constitute 14 substantial evidence that could support the rejection of Dr. Macavoy’s treating opinion. See Buck 15 v. Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017) (“The opinion of a nonexamining physician 16 cannot by itself constitute substantial evidence that justifies that rejection” of a treating opinion). 17 Accordingly, the ALJ erred by failing to provide specific and legitimate reasons for 18 rejecting Dr. Macavoy’s treating opinion. See Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 19 1998) (“Even if the treating doctor’s opinion is contradicted by another doctor, the ALJ may not 20 reject this opinion without providing ‘specific and legitimate reasons’ supported by substantial 21 evidence in the record.”). The matter must therefore be remanded for proper consideration of the 22 medical evidence. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“A district court may 23 reverse the decision of the Commissioner of Social Security, with or without remanding the cause 24 for a rehearing, but the proper course, except in rare circumstances, is to remand to the agency for 25 additional investigation or explanation.”) (internal quotes and citations omitted). 26 IV. Conclusion 27 Based on the foregoing, it is hereby ORDERED that: 28 1. Plaintiff’s motion for summary judgment is granted; 1 2. The Commissioner’s cross-motion for summary judgment is denied; 2 3. The matter is remanded for further proceedings consistent with this order; and 3 4. The Clerk of Court is directed to enter judgment in plaintiffs favor and close the case. 4 | DATED: March 27, 2020. 5 6 “ EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28