BRUCE G. MACDONALD, Magistrate Judge.
Currently pending before the Court is Defendant' Motion to Remand (Doc. 19). A response has been filed, but no reply. Plaintiff brings this cause of action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). The United States Magistrate Judge has received the written consent of both parties, and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure. The Court takes judicial notice that Michael J. Astrue is no longer Commissioner of the Social Security Administration ("SSA"). The Court will substitute the new Acting Commissioner of the SSA, Carolyn W. Colvin, as Defendant pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
On January 29, 2007, Plaintiff filed an application for Social Security Disability Insurance Benefits ("DIB") alleging disability as of January 3, 2007 due to a myocardial infarction, coronary artery disease, sleep apnea/upper airway resistance syndrome, depression, anxiety, high blood pressure, and gastrointestinal problems. See Administrative Record ("AR") at 12, 81, 148, 196, 219, 223, 257. The Social Security Administration ("SSA") denied this application on July 26, 2007. Id. at 81, 93. Plaintiff filed a request for reconsideration, and on January 25, 2008, SSA denied Plaintiff's request. Id. at 81, 101. On February 26, 2008, Plaintiff filed his request for hearing. Id. at 81, 104. On February 24, 2009, a hearing was held before Administrative Law Judge ("ALJ") Norman R. Buls. Id. at 81; Suppl. AR at 1-28. The ALJ issued an unfavorable decision on April 27, 2009. AR at 78-88. Plaintiff requested review of the ALJ's decision by the Appeals Council, review was granted, and on May 18, 2010, the Appeals Council remanded the case back to an ALJ. Id. at 89-92, 148-53. Upon remand, a supplemental hearing was held on October 26, 2010 before ALJ Norman R. Buls. Id. at 36-74. On January 5, 2011, ALJ Buls issued his Notice of Decision, denying Plaintiff benefits. Id. at 9-22. On February 2, 2011, Plaintiff requested appellate review, which was denied. Id. at 1-4, 190. Plaintiff filed this cause of action on April 30, 2012. Compl. (Doc. 1). In response to Plaintiff's Opening Brief (Doc. 16) filed on September 14, 2012, the Commissioner filed her Motion to Remand (Doc. 19).
Plaintiff was fifty-three (53) years old at the time of the supplemental administrative hearing, and forty-nine (49) at the time of the alleged onset of his disability. AR at 39, 196. Plaintiff possesses a high school education and attended two years of college at the time of his alleged onset. Id. at 39. Prior to his alleged disability, Plaintiff worked for Raytheon Missile Systems for twenty-six (26) years. Id. at 68, 164, 210, 224, 234, 239.
At the supplemental administrative hearing, Plaintiff testified that prior to the termination of his employment with Raytheon, he was exhausted and unable to focus. AR at 45. Plaintiff further testified that he no longer has "a desire to be involved in things." Id. at 47. Plaintiff testified that on a typical day he will "get up about three in the afternoon[,]" and go to bed "[a]nywhere from ten to midnight." Id. at 47. During his waking hours, Plaintiff testified that he watches television and may cook, wash dishes and make the bed. Id. at 47-8. Plaintiff further testified that he "started to get into watercolor painting," but has not painted in approximately a year. Id. at 48. Plaintiff also testified that he enjoys reading, and used to garden, but currently does not have any other hobbies and does not exercise. AR at 48-9. Plaintiff testified that he drinks approximately twenty (20) to thirty (30) beers per week. Id. at 49.
Plaintiff testified that he had recently seen his cardiologist, and a change in the size of his aorta was discovered. Id. at 50. Plaintiff further testified that he was expecting to have a CT scan to determine how large his aorta had become, as well as for his stomach issues. Id. at 50-1.
Regarding his previous employment at Raytheon Missile Systems, Plaintiff testified that during his last year there he missed more work than was authorized, approximately thirty (30) days. AR at 52. Plaintiff further testified that his job as a section manager at Raytheon required him to lift up to fifty (50) pounds at least three (3) times per week. Id. at 53. Plaintiff testified that his exhaustion goes beyond being tired, but that "it is a fuzziness with how you see . . . things." Id. at 55. Plaintiff also testified that his sleep apnea contributes to his exhaustion. Id. at 56.
Regarding his emotional issues, Plaintiff testified that he used to enjoy painting, gardening and golf, but he no longer has any interest in these things. Id. at 57. Plaintiff further testified that although he used to love to golf, he has stopped playing due to a lack of motivation. AR at 51-2. Plaintiff testified that he participates in only two benefit golf tournaments per year. Id. at 47. Plaintiff further testified that it is likely that he is depressed, and that he currently takes the anti-depressant Celexa. Id. at 57-8. Plaintiff also testified that he has problems with anxiety, and that this has been an issue since his heart attack. Id. at 58. Plaintiff testified that these issues also affected his desire and ability to work. Id. at 59; Suppl. AR at 7.
Ms. Tracy Young, a vocational expert, also testified at the administrative hearing. AR at 61. Ms. Young testified that she would categorize Plaintiff's job at Raytheon as a machine shop supervisor, DOT number 600.130-010, a medium, very skilled position. Id. at 62. Ms. Young further testified that alternatively, she would categorize Plaintiff as a production planner, based on his previous work experience, which is a light, skilled position. Id. at 62. Ms. Young identified Plaintiff as having skills, including scheduling, planning, supervising, training, resolving problems, and mediation; however, she noted that his tenure with Raytheon and lack of a college degree may limit the transferability of those skills to a highly skilled position. Id. at 64. Accordingly, the ALJ asked Ms. Young, hypothetically, whether an individual of claimant's age, education and work background with physical limitations including occasionally lifting twenty (20) pounds, frequently lifting ten (10) pounds, stand and walk with normal breaks for a total of six hours in an eight hour work day, sit with normal breaks for a total of six hours in an eight hour work day, and without limitation of pushing and pulling other than per lifting and carrying, and no postural or manipulative limitations, no visual limitations, no communicative limitations, and the individual must avoid moderate exposure to hazards, such as machinery and heights, and mentally has moderate limitations in the ability to make judgements on complex work-related decisions and to respond appropriately to usual work situations and to changes in a routine work setting, would be able to perform any past relevant work of Plaintiff. Id. at 64-5. Ms. Young opined that the physical limitations would preclude him from performing the medium job of machine shop supervisor. AR at 65.
Plaintiff's counsel questioned Ms. Young regarding his treating physician, Dr. Talalaev's opinion, that Plaintiff:
Id. at 66. Based on these physical restrictions, Ms. Young agreed that Plaintiff could not do any form of his past work. Id. She further agreed that there would be no other jobs existing in reasonable numbers in the national economy that Plaintiff could perform. Id. at 67. Plaintiff's counsel also asked Ms. Young a hypothetical regarding Plaintiff's mental limitations as reported by examining psychiatrist Dr. Rohen, diagnosing a major depressive disorder, and moderate limitations in Plaintiff's ability to complete a normal work day or week, to perform at a consistent pace without an unreasonable number and length of rest periods, to perform activities with a schedule, maintain regular attendance, and be punctual within customary tolerances, coupled with his ability to occasionally lift twenty-five (25) pounds and frequently ten (10) pounds. Id. at 67. Based upon this information, Ms. Young opined that the combination would preclude Plaintiff from doing the kind of work he had previously done and preclude him from any other kind of work that exists in reasonable numbers in the national economy. AR at 67-8.
Pursuant to request by the Arizona Department of Economic Security ("AZDES"), Plaintiff was examined by Dennis Thrasher, M.D. Id. at 590-600. Plaintiff saw Dr. Thrasher on August 9, 2010. Id. at 590. Dr. Thrasher reviewed Plaintiff's medical records, interviewed him and performed a physical examination. Id. at 590-600. Dr. Thrasher's assessment indicated a history of coronary artery disease, with current complaints of excessive fatigue, obstructive sleep apnea, Barrett's esophagitis and chronic dyspepsia, and depression and anxiety. Id. at 592. Dr. Thrasher found that Plaintiff could lift and carry up to ten (10) pounds continuously, up to twenty (20) pounds frequently and up to fifty (50) pounds occasionally. AR at 594. In an eight (8) hour work day, Dr. Thrasher found that Plaintiff could sit for six (6) hours, stand for two (2) hours and walk for one (1) hour. Id. at 595. Dr. Thrasher also found some limitation in Plaintiff's ability in reaching and pushing or pulling. Id. at 596. Dr. Thrasher further found that Plaintiff could frequently stoop, occasionally climb stairs and ramps, balance, kneel, crouch and crawl, and never climb ladders or scaffolds. Id. at 597. Dr. Thrasher additionally found that Plaintiff could frequently tolerate moving mechanical parts; occasionally tolerate operating a motor vehicle, humidity and wetness, and vibrations; and never tolerate unprotected heights, dust, odors, fumes, and pulmonary irritants or extreme cold or heat. AR at 598.
Plaintiff's records were reviewed by state agency physician Michael Maximov, M.D. Id. at 381. Dr. Maximov determined that Plaintiff could occasionally lift and/or carry up to twenty (20) pounds, frequently lift and/or carry up to ten (10) pounds, stand and/or walk (with normal breaks) for a total of about six (6) hours in an eight (8) hour work day and sit (with normal breaks) for a total of about six (6) hours in an eight (8) hour work day. Id. at 381. Dr. Maximov limited Plaintiff's ability to push and/or pull only to the degree that he was limited in carrying or lifting. Id. Dr. Maximov did not find any postural, manipulative, visual or communicative limitations for Plaintiff. Id. at 382-4. Dr. Maximov determined Plaintiff should avoid concentrated exposure to extreme heat and extreme cold and should avoid even moderate exposure to hazards such as machinery and heights. AR at 384. Dr. Maximov stated that Plaintiff's "fatigue appears more likely related to depression, untreated sleep apnea, deconditioning, alcoholism or excessive sleep rather than to CAD, Barrett's esophagus, or hyperlipidemia." Id. at 385. Pursuant to request by the Commissioner, Jerry L. Dodson, M.D., reviewed the records in this case. Id. at 116. Dr. Campbell affirmed the Residual Functional Capacity assessment of Dr. Maximov. Id.
Pursuant to request by AZDES, Plaintiff was referred for evaluation by Noelle Rohen, Ph.D. and examined on July 2, 2007. Id. at 388. Dr. Rohen reviewed Plaintiff's medical records provided by Disability Determination Services, performed a clinical interview and mini-mental state examination. Id. at 388. Dr. Rohen diagnosed Plaintiff with major depressive disorder and anxiety disorder, not otherwise specified. Id. at 390-91. She deferred to Plaintiff's medical records regarding physical diagnoses. Id. Dr. Rohen noted that Plaintiff's "[d]epression has been chronic despite treatment and is likely to persist unless treatment is adjusted, and can be expected to impact him in the workplace via its contribution to attendance problems and slowed performance." AR at 390-91.
On July 25, 2007 Plaintiff was examined by Andres Kerns, Ph.D.
Plaintiff was also examined by Kathleen V. Prouty, Ph.D. on July 30, 2010.
Plaintiff's treating physician, Yuri Talalaev, M.D., determined that Plaintiff could perform sedentary work part-time, for four (4) hours of an eight (8) hour day, but could not perform any form of light, medium or heavy work. Id. at 629. Dr. Talalaev further determined that during the work day, Plaintiff could stand for twenty (20) minutes at a time for a total of 1.3 total hours and sit for forty (40) minutes at a time for 3.7 total hours. Id. Dr. Talalaev also stated that frequent position changes would be necessary. AR at 629. Furthermore, Dr. Talalaev found Plaintiff could not climb either ladders or stairs, and would be expected to miss an average of three (3) workdays per month as a result of his disability and normal illness. Id. Dr. Talalaev stated that Plaintiff could sit in a clerical position frequently, and occasionally bend, crouch, kneel, squat, reach above shoulder level and work with arms extended in front. Id. at 630. Regarding Plaintiff's use of his hands and arms, Dr. Talalaev limited Plaintiff to occasional power gripping, pushing and pulling; pinching with thumb and index finger; fine movements, typing/small assembly; and feel/touch where sensation is required. Id. Finally, Dr. Talalaev found Plaintiff to require limitations in his environment regarding extremes of heat and cold; sudden temperature or humidity changes; exhaust fumes, smoke or dust; and strong odors such as cleaning compounds or perfumes. Id.
Plaintiff's treating physician, Lou Lancero, M.D., found Plaintiff could perform light work, but that Plaintiff would require changing positions at least once per hour. AR at 625. Dr. Lancero further stated that Plaintiff could stand or walk during a work day only as tolerated. Id. Dr. Lancero stated that Plaintiff could frequently sit in a clerical position and work with his arms extended in front, and occasionally bend, crouch, kneel, squat, and reach above shoulder level. Id. at 626. Dr. Lancero limited Plaintiff to occasional power gripping, pushing and pulling, and frequent pinching with the thumb and index finger, fine movements, typing/small assembly, and feel/touch where sensation was required. Id.
The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may "set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted).
Substantial evidence is "`more than a mere scintilla[,] but not necessarily a preponderance." Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Tackett, 180 F.3d at 1098. Further, substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where "the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). Moreover, the court may not focus on an isolated piece of supporting evidence, rather it must consider the entirety of the record weighing both evidence that supports as well as that which detracts from the Secretary's conclusion. Tackett, 180 F.3d at 1098 (citations omitted).
The Commissioner follows a five-step sequential evaluation process to assess whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as follows: Step one asks is the claimant "doing substantial gainful activity[?]" If yes, the claimant is not disabled; step two considers if the claimant has a "severe medically determinable physical or mental impairment[.]" If not, the claimant is not disabled; step three determines whether the claimant's impairments or combination thereof meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1. If not, the claimant is not disabled; step four considers the claimant's residual functional capacity and past relevant work. If claimant can still do past relevant work, then he or she is not disabled; step five assesses the claimant's residual functional capacity, age, education, and work experience. If it is determined that the claimant can make an adjustment to other work, then he or she is not disabled. 20 C.F.R. § 404.1520(a)(4)(i)-(v).
In the instant case, the ALJ found that Plaintiff was not engaged in substantial gainful activity since January 3, 2007. AR at 14. At step two of the sequential evaluation, the ALJ found that "[t]he claimant has the following severe impairments: status post myocardial infarction; depression; substance abuse (alcohol) (20 CFR 404.1520(c))." Id. at 15. At step three, the ALJ found that Plaintiff "does not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d))." Id. at 15. At step four, while including Plaintiff's substance abuse, the ALJ found that Plaintiff "is unable to perform past relevant work." Id. at 17. The ALJ also analyzed step four if Plaintiff stopped the substance use, finding that Plaintiff "would have the residual functional capacity to perform the full range of light work as defined in 20 CFR 404.1567(b)." Id. at 19. The ALJ specifically found that Plaintiff "can occasionally lift 20 pounds and frequently lift 10 pounds; stand and walk with normal breaks for six hours in an eight hour workday; sit for six hours in an eight hour workday with normal breaks; he has no limitations in pushing/pulling except for as in lifting and carrying; no postural, manipulative, visual, communicative limitations; must avoid concentrated exposure to temperature extremes (heat and cold); . . . and he should avoid moderate exposure to work hazards such as moving machinery and unprotected heights." AR at 19. The ALJ also found that "[a]bsent alcohol abuse, the claimant has no psychological limitations." Id. At step five, including substance abuse in his analysis, the ALJ determined that Plaintiff "is unable to perform any kind of work so long as substance abuse is a factor. Thus, a finding of `disabled' is appropriate under the framework of the above-cited rule." Id. at 18. The ALJ further found that "[i]f the claimant stopped the substance use, the claimant would be able to perform past relevant work as a production planner. This work does not require the performance of work-related activities precluded by the residual functional capacity the claimant would have if he stopped the substance use (20 CFR 4094.1565)." Id. at 21. Ultimately, the ALJ determined that "[b]ecause the claimant would not be disabled if he stopped the substance use (20 CFR 404.1520(f)), the claimant's substance use disorder is a contributing factor material to the determination of disability (20 CFR 404.1535). Thus, the claimant has not been disabled within the meaning of the Social Security Act[.]" Id. at 22. Plaintiff asserts that the ALJ erred in 1) failing to evaluate treating internist Dr. Talalaev's October 2010 opinions; 2) failing to evaluate treating cardiologist Dr. Lancero's October 2010 opinions; 3) erroneously evaluating examining physician Dr. Thrasher's opinions; and 4) his step four analysis. Pl.'s Opening Brief (Doc. 16) at 8-18. The Commissioner acknowledges the first three errors delineated by Plaintiff. Def.'s Memorandum in Supp. of Def.'s Mot. to Remand (Doc. 20) at 3.
"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 v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). "The opinion of a treating physician is given deference because `he is employed to cure and has a greater opportunity to know and observe the patient as an individual.'" Morgan v. Comm'r of the SSA, 169 F.3d 595, 600 (9th Cir. 1999) (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987) (citations omitted)). "The ALJ may not reject the opinion of a treating physician, even if it is contradicted by the opinions of other doctors, without providing `specific and legitimate reasons' supported by substantial evidence in the record." Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); See also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Embrey, 849 F.2d at 421 (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). Moreover, "[e]ven if a treating physician's opinion is controverted, the ALJ must provide specific, legitimate reasons for rejecting it." Id. (citing Cotton, 799 F.2d at 1408).
Here, the ALJ failed to meet this burden. It is undisputed that the ALJ failed to set forth "specific and legitimate" reasons supported by "substantial evidence in the record" as required by the Ninth Circuit. See, e.g., Rollins, 261 F.3d at 856.
"`[T]he decision whether to remand the case for additional evidence or simply to award benefits is within the discretion of the court.'" Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)). "Remand for further administrative proceedings is appropriate if enhancement of the record would be useful." Benecke v. Barnhart, 379 F.3d 587, 593, (9
Benecke, 379 F.3d at 593 (citations omitted). Where the test is met, "we will not remand solely to allow the ALJ to make specific findings. . . . Rather, we take the relevant testimony to be established as true and remand for an award of benefits." Id. (citations omitted); see also Lester, 81 F.3d at 834.
Here, the ALJ neither indicated that the opinions of Plaintiff's treating physicians Drs. Talalaev and Lancero were controverted nor provided clear and convincing reasons for rejecting them. See Lester, 81 F.3d at 830-31; AR at 19. Moreover, a treating physician's opinion is "entitled to special weight." Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). The record before the Court is fully developed. Based upon the physical restrictions determined by Dr. Talalaev, the vocational expert agreed that Plaintiff could not do any form of his past work, and agreed that there would be no other jobs existing in reasonable numbers in the national economy that Plaintiff could perform. Id. at 66-67. Properly crediting the opinion of Dr. Talalaev, the ALJ would be required to find Plaintiff is disabled. See Lester, 81 F.3d at 834. As such, there are no outstanding issues that must be resolved before a determination of disability can be made. Accordingly, the final decision of the Commissioner denying Plaintiff's application for benefits is reversed and remanded for an award of benefits.
In light of the foregoing, the Court reverses the Commissioner's decision and remands for an award of benefits.
Accordingly, IT IS HEREBY ORDERED that:
1) Carolyn W. Colvin, Acting Commissioner of Social Security, is
2) Plaintiff's Opening Brief (Doc. 16) is GRANTED;
3) The Commissioner's Motion for Remand (Doc. 19) is GRANTED in part and DENIED in part;
4) The Commissioner's decision is REVERSED and REMANDED for calculation and award of benefits. 42 U.S.C. § 405(g); and
5) The Clerk of the Court shall enter judgment, and close its file in this matter.
