MARIA DAVILA, Magistrate Judge.
Plaintiff Carol Anne Tepper filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security. (Doc. 1.) Before the Court are Tepper's opening brief, the Commissioner's response brief, and Tepper's reply brief. (Docs. 14, 16, 17.) For the following reasons, this matter will be remanded back to the agency for reevaluation of Tepper's application.
Tepper applied for disability benefits on March 1, 2015, claiming a disability onset date of May 9, 2012.
Tepper, who is 52 years old, reported having five different jobs between May 1991 and May 2012.
Tepper reported developing a "severe fatigue problem" in 1998, a problem which eventually caused her to resign from her then-current position as an interpretive park ranger.
On April 22, 2016, Dr. Raed Sukerji, Tepper's primary care physician, completed a "Medical Work Tolerance Recommendations" form.
In the treatment notes, also dated April 22, 2016, Dr. Sukerji opined that Tepper's "major issue . . . in terms of employment is that for 3-4 days a week on average she wakes up with a sense of excessive fatigue, and at those days she is unable to work."
Tepper was examined by Dr. Scott Krasner on September 2, 2015, in connection with her application for disability benefits.
There is a "Medical Source Statement" attached to Dr. Krasner's evaluation report.
Two agency physicians, Dr. Luther Woodcock and Dr. John Fahlberg, conducted paper-only reviews of Tepper's medical file and rendered opinions on Tepper's residual functional capacity ("RFC").
Linda Rothchild, Tepper's mother, completed two adult-function reports and wrote a letter about Tepper's conditions.
At the hearing before the ALJ, Tepper testified generally about her past work, her then-present attempts to work, and the symptoms of her chronic fatigue and multiple sclerosis.
A VE testified that Tepper's butterfly curator job was a composite job consisting of elements of numerous occupations, and that Tepper performed that composite work at the light exertion level.
The ALJ asked the VE about a hypothetical claimant with Tepper's age and education who is limited to frequent climbing of ramps and stairs, occasional climbing of ladders, ropes, or scaffolds, occasional balancing, and frequent stooping, kneeling, crouching, and crawling, but who could otherwise perform the full range of light work.
The ALJ followed the five-step sequential evaluation process for determining whether an individual is disabled.
Between steps three and four, the ALJ found that Tepper has the RFC to perform light work with the following limitations: she can occasionally climb ladders, ropes, and scaffolds, she can occasionally balance, she can frequently climb ramps or stairs, and she can frequently stoop, kneel, crouch or crawl.
At step four, the ALJ determined that Tepper can perform all of her past relevant work, both as generally performed in the national economy and as she actually performed it, with the exception of program coordinator, which she can perform only as generally performed.
A person is "disabled" within the meaning of the Social Security Act if she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). "When considering a claim for disability benefits, the Social Security Administration is required to conduct a now-familiar five-step sequential evaluation process to determine whether a claimant is disabled and eligible for benefits." Shaibi v. Berryhill, 883 F.3d 1102, 1106 (9th Cir. 2017). The claimant bears the burden of proof at steps one through four; the Commissioner bears the burden at step five. Barnes v. Berryhill, 895 F.3d 702, 703 n.3 (9th Cir. 2018) (citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
At the first step, the ALJ determines whether the claimant is engaged in "substantial gainful activity." 20 C.F.R. § 404.1520(a)(4)(i). If yes, the ALJ will find the claimant not disabled. Id. At the second step, the ALJ considers whether the claimant has a "severe" physical or mental impairment, or a combination of impairments that is "severe," that has lasted at least one year. Id. §§ 404.1520(a)(4)(ii), 404.1509. If not, the ALJ will find the claimant not disabled. Id. § 404.1520(a)(4)(ii). At the third step, the ALJ considers whether the claimant's impairments meet or equal one of the medical conditions listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. § 404.1520(a)(4)(iii). If yes, the ALJ will find the claimant disabled. Id.
If the ALJ does not find the claimant disabled at the third step, before proceeding to the fourth step, the ALJ will determine the claimant's RFC—i.e., what the claimant can still do despite her limitations. See Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017); 20 C.F.R. § 404.1545(a)(1). At the fourth step, the ALJ considers whether the claimant has the RFC to perform her "past relevant work." 20 C.F.R. § 404.1520(a)(4)(iv). If yes, the ALJ will find the claimant not disabled. Id. At the fifth step, the ALJ considers the claimant's RFC, age, education, and work experience and determines whether the claimant "can make an adjustment to other work." Id. § 404.1520(a)(4)(v). If yes, the ALJ will find the claimant not disabled; if not, the ALJ will find the claimant disabled. Id.
The ALJ's decision to deny disability benefits is subject to harmless-error review, Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017) (citing Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)) and must be affirmed "unless it is not supported by substantial evidence or is based on a legal error," Wellington v. Berryhill, 878 F.3d 867, 871 (9th Cir. 2017) (citing Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010)). "Substantial evidence `is more than a mere scintilla,' but less than a preponderance." Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018) (quoting Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam)). "A reviewing court may only consider the reasons provided by the ALJ in the disability determination and `may not affirm the ALJ on a ground upon which he did not rely.'" Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)).
Tepper argues the ALJ erred in determining that she has past relevant work in the sedentary exertion range. She contends that neither her laboratory-assistant job nor butterfly-curator job qualify as past relevant work, because her earnings did not reach the level considered to be substantial gainful activity. The Court agrees.
At the fourth step, the ALJ determines whether the claimant retains the RFC to perform her "past relevant work"; if so, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). "A job qualifies as past relevant work only if it involved substantial gainful activity." Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001); see 20 C.F.R. § 404.1560(b)(1). "Substantial gainful activity is work done for pay or profit that involves significant mental or physical activities." Lewis, 236 F.3d at 515 (citations omitted). "Earnings can be a presumptive, but not conclusive, sign of whether a job is substantial gainful activity." Id.
The Social Security regulations specify monthly earnings amounts, which are used to determine whether a claimant has engaged in substantial gainful activity. 20 C.F.R. § 404.1574(b)(2).
Tepper worked as a laboratory assistant from May 2010 to May 2012.
The Commissioner concedes that the neither position is by itself past relevant work. However, the Commissioner argues that the ALJ properly considered "other information in addition to [Tepper's] earnings," specifically that Tepper worked both jobs at the same time. Because the earnings from those two jobs together exceeded the substantial-gainful-activity level, the Commissioner says, the ALJ correctly found that Tepper was engaged in substantial gainful activity.
The ALJ, however did not provide this reason. "Long-standing principles of administrative law require [federal courts] to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009). In determining Tepper's past relevant work, the ALJ merely cited and adopted the VE's testimony.
Therefore, the Commissioner's argument is a post hoc rationalization that must be rejected. See Bray, 554 F.3d at 1225. It is clear from Tepper's earnings that her laboratory-assistant and butterfly-curator jobs were not substantial gainful activity. It was error for the ALJ to conclude otherwise.
The deference afforded to a physician's medical opinion depends on the physician's relationship with the claimant and whether the physician's opinion is contradicted by another physician's medical opinion. See Garrison, 759 F.3d at 1012. There are three categories of physicians: "(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians)." Id. (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). "Generally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing Lester, 81 F.3d at 830; 20 C.F.R. § 404.1527).
If a treating physician's opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with . . . other substantial evidence," it is given "controlling weight." 20 C.F.R. § 404.1527(c)(2). If a treating physician's medical opinion is uncontradicted by another physician, the opinion may be rejected "only for `clear and convincing' reasons supported by substantial evidence in the record." Holohan, 246 F.3d at 1202 (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). However, "[i]f a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence." Garrison, 759 F.3d at 1012 (quoting Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). An ALJ can satisfy the standard of "substantial evidence" by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Id. (quoting Reddick, 157 F.3d at 725). The standard is not met, however, when the ALJ "rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion." Id. at 1012-13.
Even if a treating physician's opinion is not given controlling weight, the opinion is still entitled to some deference. Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007) (citing 20 C.F.R. § 404.1527). The amount of deference afforded to a noncontrolling opinion depends on several factors, including the length, nature, and extent of the treatment relationship, the amount of objective medical evidence (e.g., laboratory findings) supporting the opinion, and the consistency of the opinion with the record as a whole. 20 C.F.R. § 404.1527(c)(2)-(6).
"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." Lester, 81 F.3d at 831 (emphasis in original) (citations omitted). As such, if a non-examining physician relies on the same clinical findings as a treating or examining physician but merely reaches a different conclusion, the differing conclusion is not substantial evidence. See Orn, 495 F.3d at 632; Martinez v. Colvin, 585 F. App'x 612, 612 (9th Cir. 2014). However, if supported by other evidence, such as "independent clinical findings," the opinion of a non-examining physician may constitute substantial evidence for rejecting a treating or examining physician's opinion. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
The parties agree that Dr. Sukerji is Tepper's treating physician. Because Dr. Sukerji's opinions regarding Tepper's limitations and ability to work are contradicted by the opinions of Dr. Woodcock and Dr. Fahlberg,
Tepper argues that the ALJ's analysis is fundamentally flawed because the ALJ failed to recognize that Dr. Sukerji is a treating physician. This error, she says, made it "impossible" for the ALJ to properly evaluate Dr. Sukerji's opinions. The Court disagrees.
Although the ALJ's decision does not expressly refer to Dr. Sukerji as a treating physician, it can reasonably be inferred that the ALJ recognized Dr. Sukerji's status as such. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (stating that, in reviewing the ALJ's decision, the court is "not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ's opinion"). At the hearing, Tepper expressly told the ALJ that Dr. Sukerji is her primary care physician and that she had seen him two to three times per year for approximately three years.
In the decision denying benefits, the ALJ addressed Dr. Sukerji's opinion that Tepper is precluded from work due to her fatigue.
As stated in the background section, Dr. Sukerji's opinion has two parts.
Rejecting the fatigue opinion (which, as described below, was error) did not also require rejecting the exertional-limitations opinion. Therefore, the ALJ had a duty to examine Dr. Sukerji's opinion regarding Tepper's exertional limitations and could have rejected that opinion only for specific and legitimate reasons. See Martin v. Comm'r of Soc. Sec. Admin., 472 F. App'x 580, 580 (9th Cir. 2012) (holding the ALJ erred in determining RFC "because the RFC neither incorporated Dr. Steiner's opinion of Martin's work limitations nor gave specific and legitimate reasons for rejecting it"). By ignoring the opinion, the ALJ failed to provide specific and legitimate reasons. Garrison, 759 F.3d at 1012-13. This error was harmful because if the ALJ accepted the exertional limitations and incorporated them into the RFC, then the ALJ could have found that Tepper was incapable of her past relevant work. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (holding ALJ erred in not including in RFC an exertional limitation recommended by treating physician).
The ALJ rejected Dr. Sukerji's opinion that Tepper's CFS precludes work based on Tepper's reports that she took a solo bird-watching trip to Canada, dragged a piece of heavy furniture, tried to walk 30 to 40 minutes "every day," and pulled weeds.
The activities relied upon by the ALJ for discounting Dr. Sukerji's opinions are not inconsistent with the sporadic nature of CFS. See Blau v. Astrue, 263 F. App'x 635, 637 (9th Cir. 2008) (holding that household chores, grocery shopping, and an isolated recreational rowboat outing "are generally considered consistent with the sporadic nature of CFS"); SSR 14-1p, 2014 WL 1371245, at *5 (Apr. 3, 2014) (providing guidance on evaluating claims based on CFS and recognizing that "medical signs, symptoms, and laboratory findings of CFS fluctuate in frequency and severity and often continue over a period of many months or years"). First, the record does not indicate how often Tepper pulls weeds or for how long each time.
Because none of the relied-upon activities are inconsistent with CFS, they do not undermine Dr. Sukerji's opinion that Tepper's fatigue renders her incapable of work. See Reddick, 157 F.3d at 722 (rejecting ALJ's rationale that claimant's daily activities were inconsistent with CFS and stating that "disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations"). Thus, the ALJ did not provide specific and legitimate reasons for rejecting Dr. Sukerji's opinion regarding the effects of Tepper's CFS.
Dr. Scott Krasner evaluated Tepper once, on September 2, 2015, and opined that Tepper should not stand or walk for more than 30 minutes at a time or for more than four hours in an eight-hour period.
Tepper argues that this reason is both legally erroneous and pretextual. She asserts that it is legally erroneous because something beyond an examining physician's status is required to reject that physician's opinion. She asserts that it is pretextual considering the ALJ gave "substantial weight" to the opinions of state-agency physicians who did not examine her. The Commissioner offers three reasons of its own why the ALJ did not err: first, Dr. Krasner's opinions are mere recommendations, not imperatives that the ALJ was required to incorporate or expressly reject; second, the findings in Dr. Krasner's "Medical Source Statement" are inconsistent with the findings in his evaluation report; and third, the ALJ adopted an RFC that was "generally consistent" with Dr. Krasner's Medical Source Statement, including lifting and carrying restrictions greater than those proposed by Dr. Krasner. The Court finds that the ALJ erred.
The rules for analyzing an examining physician's opinions are identical to those for analyzing a treating physician's opinions. Garrison, 759 F.3d at 1012. Logically, then, an examining physician's opinion cannot be rejected merely because he or she is not a treating physician. This error was harmful, since the ALJ determined that Tepper is capable of "light work," which requires "standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday." SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983). Dr. Krasner opined that Tepper cannot stand or walk for more than four hours in an eight-hour period, so if the proposed limitation is incorporated into the RFC, Tepper would be incapable of performing the standing and walking requirements of light work.
The Commissioner's arguments to the contrary are post hoc rationalizations, as the ALJ relied entirely on Dr. Krasner's status and said nothing about the substance of his opinions. Furthermore, the Commissioner's arguments are without merit. Dr. Krasner offered the four-hour walking and standing restriction in a dictated evaluation report.
Instead of adopting this reasonable interpretation and reading the two documents together, the Commissioner argues that the evaluation report and Medical Source Statement should be analyzed separately. That is, according to the Commissioner, the checked-box answer is an "opinion" that Tepper can stand and/or walk for up to six hours, and the four-hour restriction set forth in the evaluation report is a mere "recommendation" on how to make work easier for Tepper. This argument rings hollow, as it relies entirely on a skewed reading of the Medical Source Statement. The evaluation report and Medical Source Statement should be read together. When they are, it is clear that Dr. Krasner opined that Tepper has a four-hour walking and standing limitation.
The Commissioner's reliance on the prefatory "I would recommend" language is not persuasive.
Finally, the Commissioner argues that the RFC adopted by the ALJ is "generally consistent" with Dr. Krasner's Medical Source Statement. Given the conflict between the RFC and Dr. Krasner's proposed walking and standing limitation, this argument is without merit.
Tepper argues that the ALJ erred in evaluating the opinions of non-examining physicians Dr. Woodcock and Dr. Fahlberg. She complains that although the ALJ gave "substantial weight" to Dr. Woodcock's opinion that she can stand and/or walk for four hours in an eight-hour workday, the ALJ inexplicably found that she has the RFC to perform light work, which requires standing and/or walking for six hours in an eight-hour workday.
This issue is tied to the ALJ's analyses of Dr. Sukerji's and Dr. Krasner's opinions: The ALJ could accept the conflicting opinions of non-examining physicians over the opinions of Dr. Sukerji and Dr. Krasner only by providing specific and legitimate reasons supported by substantial evidence. See Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995) (finding ALJ gave specific and legitimate reasons for adopting opinions of non-examining physician over examining physician). As explained in the preceding sections, the ALJ did not do so.
Furthermore, the ALJ's analysis of the agency physicians' opinions is itself flawed. The ALJ provided two boilerplate reasons for accepting their opinions. First, the ALJ found that the physicians "are highly qualified physicians who are also experts in Social Security disability evaluation . . . ."
The second reason—i.e., that the non-examining physicians' opinions are "consistent with the medical evidence of record as described herein"—is provided in almost every ALJ denial.
Tepper asserts that the ALJ applied a stricter, legally incorrect definition of "disability" by stating that her limitations "do not prevent [her] from performing any work," and that a decline in her physical abilities "does not necessar[ily] preclude her from performing all work activity."
Although Tepper is correct that she need not show complete preclusion from all work, the ALJ's decision reflects application of the correct legal definition.
Tepper requests that this case be remanded for an immediate award of benefits, or, in the alternative, be remanded for further proceedings. This case will be remanded with instructions for the ALJ to reevaluate Tepper's claim.
When the ALJ commits reversible error, the court may either remand for reevaluation of the claimant's application or, in some cases, for an immediate award of benefits. See Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017). Under the "credit-as-true" rule, federal courts may remand for an award of benefits if three conditions are met. Leon, 880 F.3d at 1045 (citing Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396, 1400-01 (9th Cir. 1988)). First, courts determine "whether the `ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.'" Id. (quoting Garrison, 759 F.3d at 1020). Second, courts "determine whether the record has been developed thoroughly and is free of conflicts, ambiguities, or gaps." Id. at 1046-47 (citing Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014)). "When there are outstanding issues that must be resolved before a determination can be made, or if further administrative proceedings would be useful, a remand is necessary." Id. at 1047. Third, courts determine whether, if the improperly rejected evidence is credited as true, the ALJ would be required to find the claimant disabled. Id. at 1045 (citing Treichler, 775 F.3d at 1101). If yes, then a direct award of benefits may be appropriate. Id.
The first part of the credit-as-true rule is satisfied. As explained in this Order, the ALJ made multiple legal errors, including a failure to properly evaluate and weigh the opinions of Dr. Sukerji, Dr. Krasner, Dr. Woodcock, and Dr. Fahlberg, and a failure to properly analyze Tepper's laboratory-assistant and butterfly-curator jobs. However, the second part of the test is not satisfied. Further proceedings would be useful so that the ALJ can properly resolve the conflicting medical opinions and assess Tepper's symptom testimony and other evidence. See Treichler, 775 F.3d at 1098, 1101 (stating that it is for the ALJ "to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record," and that it is inappropriate to remand for benefits "[w]here there is conflicting evidence, and not all essential factual issues have been resolved"). Tepper does not seriously argue that an award of benefits is appropriate, so this matter will be remanded for further proceedings consistent with this Order.
Accordingly,