JILL L. BURKHARDT, Magistrate Judge.
This matter is before the Court on cross-motions for summary judgment. (ECF Nos. 16, 18.) Plaintiff Aaron Spayd moves under 42 U.S.C. § 405(g)
This Report and Recommendation is submitted to United States District Judge Janis L. Sammartino pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) of the United States District Court for the Southern District of California. After careful review of the moving and opposing papers, the administrative record, the facts, and the applicable law, the Court hereby RECOMMENDS that Plaintiff's motion for summary judgment (ECF No. 16) be DENIED IN PART AND GRANTED IN PART. The Court further RECOMMENDS that the Commissioner's cross-motion for summary judgment affirming the Administrative Law Judge's ("ALJ") decision (ECF No. 18) be DENIED.
Plaintiff filed applications for a period of disability and disability insurance benefits and supplemental security benefits on April 19, 2012.
Thereafter, the Social Security Administration Appeals Council denied Plaintiff's request for review of the ALJ's unfavorable decision, making the ALJ's decision the final decision of the Commissioner. (Id. at 2.) Plaintiff then commenced this instant action for judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
The Social Security Act allows for unsuccessful applicants to seek judicial review of the Commissioner's final agency decision.
In making this determination, the Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion.
Utilizing the five-step disability evaluation process,
Before proceeding to step two, the ALJ addressed whether Plaintiff was subject to res judicata in light of Plaintiff's final unfavorable decision of nondisability issued by Administrative Law Judge Parker on October 7, 2010. (Id.) The ALJ explained that, absent a showing of changed circumstances since that final unfavorable decision, Plaintiff was subject to presumptions of nondisability and of continuing applicability of residual functional capacity as determined by Judge Parker. (Id.) The ALJ concluded that the evidence showed changed circumstances, and provided the following analysis:
(Id.)
The ALJ then proceeded to step two and found that Plaintiff had the following severe impairments: asthma; schizophrenia; affective disorders; and polysubstance abuse.
At step three, the ALJ found that Plaintiff does not have an impairment or a combination of impairments that meet the severity required to stop analysis at step three and award benefits. (Id.) Before considering step four, the ALJ found that Plaintiff has the residual functional capacity to perform sedentary work except has environmental limitations to no exposure to extreme cold and heat; can perform simple repetitive tasks, with no public contact; and minimum interactions with co-workers and supervisors. (Id. at 35.) In arriving at this residual functional capacity determination, the ALJ looked at the entire record, including Plaintiff's medical history to determine the limitations of his asthma, low back pain, affective disorder, and polysubstance abuse. (Id. at 34-44.)
At step four, the ALJ compared the residual functional capacity assessed to the demands of Plaintiff's past relevant work as a cook/cashier, security guard, and shipping and receiving clerk. (Id. at 45.) In doing so, the ALJ relied on the testimony of the vocational expert to determine that Plaintiff is unable to perform any past relevant work. (Id.) At step five, the ALJ determined that, considering the Plaintiff's age, education, work experience, and residual functional capacity, there were jobs in significant numbers in the national economy that Plaintiff could perform. (Id.) The ALJ relied on the testimony of the vocational expert to determine that Plaintiff could work as an assembler or a production examiner. (Id. at 46.) The ALJ then concluded that Plaintiff "has not been under a disability, as defined in the Social Security Act, from October 8, 2010, through the date of this decision." (Id.)
Plaintiff challenges the ALJ's residual functional capacity determination. Plaintiff argues that it was not supported by substantial evidence and was the product of harmful legal error for two reasons. The first harmful legal error argued by Plaintiff is that the ALJ failed to provide "specific and legitimate reasons" for discounting two treating physicians' opinions. (ECF No. 16-1 at 18-26.) More specifically, Plaintiff argues that the ALJ failed to properly discount the following specific opinions of Dr. Francisco Recalde and Dr. Jonathan Kistler, which would change the outcome at the final step of determining disability: (1) Dr. Recalde's opinion that limited Plaintiff to "occasional" handling and fingering; (2) Dr. Kistler's opinion that found marked limitation in "sustaining an ordinary routine without special supervision;" and (3) both Dr. Recalde and Dr. Kistler opinions that Plaintiff would miss more than four days per month due to his mental and physical limitations.
The second harmful legal error argued by Plaintiff is that the ALJ failed to provide "clear and convincing" reasons for discrediting Plaintiff's testimony regarding functional limitations with respect to the use of his hands. (Id. at 26-28; ECF No. 20 at 10-11.)
The Commissioner opposes Plaintiff's motion and cross-moves for summary judgment, arguing: (1) the ALJ properly considered the medical evidence in the record when determining the appropriate weight to assign to Dr. Recalde's and Dr. Kistler's opinions (EFC No. 18-1 at 3-7); and (2) the ALJ properly assessed Plaintiff's credibility, which is supported by the substantial evidence of the record (id. at 7-10).
For the reasons explained below, the Court concludes that the ALJ articulated specific and legitimate reasons supported by substantial evidence in the record to discount Dr. Reclade's opinions, but failed to articulate specific and legitimate reasons to discount Dr. Kistler's opinions. Further, the ALJ failed to articulate clear and convincing reasons to discredit Plaintiff's statements concerning the limiting effects on the use of his hands as a result of his symptoms.
Here, it is undisputed that both Drs. Recalde's and Kistler's opinions constitute opinions of a treating source.
"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. At least where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for `clear and convincing' reasons."
On November 18, 2013, Dr. Recalde provided a medical record to the Social Security Administration reflecting his opinion that Plaintiff met the requirements for listed impairment 3.03 due to his asthma. (ECF No. 13-8 at 89-91.) The medical record was a checklist on which Dr. Recalde checked off boxes describing 3.03 asthma criteria that he believed applied to Plaintiff. In completing this checklist, Dr. Recalde said that Plaintiff had chronic asthmatic bronchitis with FEV1 equal to or less than the value specified corresponding to the person's height without shoes. (Id. at 90.) He also said that over the course of a 12 or more consecutive month evaluation period, Plaintiff experienced asthma attacks, in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least six times a year and hospitalized for longer than 24 hours. (Id.)
The ALJ found, and Plaintiff's medical records rationally support the conclusion, that Plaintiff did not suffer from asthma attacks requiring physician intervention at least every two months or at least six times a year. (ECF No. 13-2 at 36.) As a result, the ALJ gave Dr. Recalde's asthma opinion less weight. (Id.) Plaintiff does not challenge this determination.
Plaintiff does, however, challenge whether the ALJ's decision to give "no weight" to the Residual Functional Capacity Questionnaire completed by Dr. Recalde on October 31, 2013 (the same date Dr. Recalde signed the 3.03 asthma opinion discussed above) is supported by specific and legitimate reasons for doing so.
Also within the Questionnaire, Dr. Recalde provided an "estimate" of his "patient's functional limitations if your patient were placed in a competitive work situation on an ongoing basis." (Id.) Dr. Recalde estimated that Plaintiff would not be able to walk more than 2-2½ city blocks without rest or significant pain; would be able to sit for only 45 minutes at a time and only for 3-hours in an 8-hour workday; would be able to stand/walk for 45 minutes at a time and only for 3-hours in an 8-hour workday; would need to shift positions from sitting, standing, or walking; and would take 5-6 unscheduled 10-15 minute breaks throughout the day. (Id.) With respect to Plaintiff's ability to "lift and carry in a competitive work situation," Dr. Recalde estimated that Plaintiff could only lift anything weighing 20 pounds or less occasionally (less than 1/3 of the 8-hour workday) and anything over 50 pounds never. (Id. at 95.) Dr. Recalde also checked a box indicating that Plaintiff has "limitations in doing repetitive reaching, handling or fingering," and provided the following estimates of these limitations during an 8-hour workday: Plaintiff could use his right hand to grasp, turn, or twist objects only 30% of the workday; could use his right fingers for fine manipulation only 50% of the workday; could use his right arm for reaching only 10% of the workday; could use his left hand to grasp, turn, or twist objects only 80% of the workday; could use his left fingers for fine manipulation only 80% of the workday; and could use his left arm for reaching only 25% of the workday. (Id.) Also within the Questionnaire, Dr. Recalde provided the following estimate of how often Plaintiff is likely to be absent from work as a result of his impairments or treatments: more than four times a month. (Id.)
Plaintiff specifically challenges whether the ALJ articulated a sufficient basis to assign "no weight" to Dr. Recalde's opinions and focuses his argument on the portions of Dr. Recalde's opinion that show Plaintiff is only capable of "occasional" handling and fingering in a competitive work situation. (ECF No. 16-1 at 20-21.) Defendant responds generally that "[t]he ALJ properly considered the medical evidence of record" and the ALJ properly discounted Dr. Recalde's opinions because the record showed he had "less insight into [Plaintiff's] condition" than the hypothetical treating physician contemplated by the Social Security Regulations, which outline the general rule that more weight should be given to the opinion of a treating source. (ECF No. 18-1 at 3-6.) More specifically, Defendant argues that the ALJ reasonably concluded that Dr. Recalde was not familiar with information in Plaintiff's records and explained that this conclusion was supported by the fact that Plaintiff's appointments were always with Dr. Recalde's physician's assistant, Bernard Casillan, and Dr. Recalde relied on patently inaccurate information about the severity of Plaintiff's asthma in issuing his 3.03 asthma opinion. (Id. at 5-6.)
The Court concludes that the ALJ articulated specific and legitimate reasons supported by substantial evidence for rejecting and offering no weight to Dr. Recalde's opinions. For example, the ALJ explained that Dr. Recalde issued an opinion about Plaintiff's asthma that was contradicted by the record — by both Plaintiff's reports and the objective evidence in the record of hospitalizations and emergency visits. (ECF No. 13-2 at 36.) The ALJ also criticized Dr. Recalde for failing to provide any test results to support his asthma opinion. (Id.) Dr. Recalde provided his asthma opinion on the same date (October 31, 2013) as the Questionnaire form containing the opinions at issue. On both forms, asthma is a diagnosis. (ECF No. 13-8 at 90-95.) The contradictions between Dr. Recalde's opinions and the record show that Dr. Recalde was not sufficiently familiar with information in Plaintiff's records and constitute specific and legitimate reasons for rejecting Dr. Recalde's opinions.
Besides asthma, the only other diagnoses listed by Dr. Recalde on the Questionnaire were central extrusion L5-S1 and degenerative disc disease. The ALJ addressed Dr. Recalde's opinions concerning Plaintiff's functional limitations arising from these diagnoses under the heading Low Back Pain. (ECF No. 13-2 at 37-38.) The ALJ rejected Dr. Recalde's opinions, explaining: (1) Dr. Recalde's Questionnaire answers were unreliable as evidenced by the fact that he failed to give Plaintiff environmental limitations in light of his severe asthma; (2) Dr. Recalde's Questionnaire answers were unreliable because Dr. Recalde had not seen Plaintiff in months; (3) Dr. Recalde's Questionnaire answers were inconsistent with the "generally unremarkable physical examination found by consultative examiner Dr. Dao"; and (4) Plaintiff "does not have objective physical findings of a severe orthopedic condition that would justify" Dr. Recalde's more restrictive assessment. (Id. at 38.) The ALJ provided specific and legitimate reasons supported by substantial evidence for rejecting Dr. Recalde's opinions.
Plaintiff attacks the ALJ's reasons for rejecting Dr. Recalde's Questionnaire answers. First, Plaintiff argues that there are "two simple explanations" for why Dr. Recalde did not include an environmental limitation in the Questionnaire: (1) because he separately found (on the other form completed on October 31, 2013) that Plaintiff's asthma met the requirements for Listing 3.03; and (2) the Questionnaire "did not inquire about environmental limitations and focused more specifically upon physical limitations." (ECF No. 16-1 at 22.) Plaintiff misses the point. "When the evidence before the ALJ is subject to more than one rational interpretation, [courts] must defer to the ALJ's conclusion."
Second, Plaintiff argues that the ALJ erred in rejecting Dr. Recalde's October 31, 2013 opinions on the basis that Dr. Recalde had not seen Plaintiff "in months." (Id. at 22-23.) Plaintiff argues that this reasoning shows that "[t]he ALJ chose not to examine any of the factors for assessing opinion evidence (20 C.F.R. §§ 404.1527(c), 416.927(c)), particularly the frequency of Dr. Recalde's examinations, which appeared to have occurred monthly." (Id.) In support, Plaintiff points to treatment notes bearing Dr. Recalde's signature for the April 29, 2010 through April 30, 2012 time period and other evidence, which Plaintiff argues show Dr. Recalde examined Plaintiff on a monthly basis. (Id. at 23.) In response, Defendant generally argues that the ALJ properly considered the infrequency with which Dr. Recalde actually saw Plaintiff, including that Dr. Recalde had not seen Plaintiff in months.
The Court finds that substantial evidence in the record supports the ALJ's conclusion that Dr. Recalde's Questionnaire answers were not reliable for purposes of assessing Plaintiff's present physical limitations. Given Dr. Recalde had not seen Plaintiff in months, it was rational for the ALJ to conclude that Dr. Recalde was not sufficiently familiar with Plaintiff's present physical limitations. The ALJ reasoned that, "Dr. Recalde had not seen the claimant in months, which makes it a little more difficult for him to make a functional determination." (ECF No. 13-2 at 38.) This was a specific and legitimate reason supported by substantial evidence to reject and offer no weight to Dr. Recalde's opinion regarding Plaintiff's present physical limitations.
According to the administrative record, the last time Dr. Recalde's office saw Plaintiff was March 4, 2013 — more than 7 months prior to Dr. Recalde's Questionnaire answers. (ECF No. 13-8 at 48, 95.) And it is unclear which treatment records, if any, Dr. Recalde believed supported the functional limitations reflected in the Questionnaire. Dr. Recalde was given the opportunity to, but did not, "attach all relevant treatment notes, laboratory and test results" to the Questionnaire. (See Id. at 94.)
Plaintiff argues that the ALJ should have assigned weight to Dr. Recalde's Questionnaire answers that suggested Plaintiff was only capable of "occasional" handling and fingering in a competitive work situation because they were supported by treatment records concerning Plaintiff's eczema. (ECF No. 16-1 at 23.) The problem with this argument is that Dr. Recalde did not identify eczema or any other condition affecting the use of Plaintiff's hands as forming the basis for his Questionnaire answers that suggested Plaintiff was only capable of "occasional" handling and fingering. Rather, Dr. Recalde diagnosed Plaintiff as having three impairments: (1) central extrusion L5-S1; (2) degenerative disc disease; and (3) asthma. (ECF No. 13-8 at 94.) Based on Dr. Recalde's Questionnaire answers, it was rational for the ALJ to conclude that Dr. Recalde's opinions did not rely on the records to which Plaintiff now points for purposes of summary judgment. Thus, it defies logic to argue that the ALJ was required to consider treatment records outside the scope of Dr. Recalde's diagnoses to support the functional limitations that Dr. Recalde said flowed from his diagnoses.
Third, Plaintiff argues that the ALJ erred in relying upon the opinion of Dr. Dao when rejecting Dr. Recalde's October 31, 2013 opinions. (ECF No. 16-1 at 24.) In support, Plaintiff argues that the ALJ improperly engaged in selective reliance because he both rejected Dr. Dao's opinion that Plaintiff could perform light work and relied on Dr. Dao's opinion to reject Dr. Recalde. (Id.) Plaintiff also argues that it was improper to rely on Dr. Dao's opinion because he lacked the necessary background information about Plaintiff's condition. (Id.)
Plaintiff's argument that the ALJ improperly engaged in selective reliance ignores the procedural posture of this case. The ALJ explained that principles of res judicata applied to this case as a result of ALJ Parker's prior final unfavorable decision. (ECF No. 13-2 at 33, 37.) In 2010, ALJ Parker found that Plaintiff's residual functional capacity limited Plaintiff to sedentary work. (Id. at 35.) Here, the ALJ adopted ALJ Parker's prior sedentary residual functional capacity determination (id. at 38), and Plaintiff does not argue that this was error. Thus, the issue before the ALJ in
Plaintiff's argument that Dr. Dao lacked the necessary background information about Plaintiff's condition is unpersuasive.
Moreover, Dr. Dao's physical examination is consistent with the record. For example, the State agency consultants who reviewed all the available medical evidence made findings consistent with Dr. Dao's findings that suggested Plaintiff was
The final reason articulated by the ALJ for rejecting Dr. Recalde's October 31, 2013 opinions was that Plaintiff "does not have objective physical findings of a severe orthopedic condition that would justify a more restrictive assessment" of Plaintiff's residual functional capacity. (Id. at 38.) As the parties do not address this rationale in their papers, the Court declines to analyze whether this reasoning standing alone constitutes a specific and legitimate reason supported by substantial evidence to reject Dr. Recalde's October 31, 2013 opinions. However, as stated above, the Court concludes that the ALJ articulated other specific and legitimate reasons supported by substantial evidence in the record for rejecting Dr. Recalde's October 31, 2013 opinions.
Plaintiff's request for summary judgment relating to Dr. Recalde's opinions should be denied.
Dr. Kistler offered an assessment of Plaintiff's mental limitations. The ALJ assigned little weight to Dr. Kistler's assessment, explaining:
(Id. at 41.) Plaintiff argues that this articulated rationale both does not meet the "specific and legitimate" standard for discounting a treating source's opinion and is unsupported by the record.
Defendant's response in opposition is unavailing. Defendant argues that the ALJ properly discounted the medical source statement of Dr. Kistler for the following reasons: (1) it constituted a check box opinion; (2) it relied on "self-reports"; (3) it was inconsistent with the ALJ's finding that Plaintiff's psychiatric impairments were under "good control" when Plaintiff "took his medication"; and (4) the ALJ rationally interpreted ambiguities in the medical evidence as being inconsistent with Dr. Kistler's opinions. (ECF No. 18-1 at 6-7.) A key flaw of this response is that reasons (1), (2), and (4) were not articulated by the ALJ.
Only reason (3) above appears in the ALJ's decision weighing Dr. Kistler's opinion. The ALJ said that he discounted Dr. Kistler's medical opinion because Plaintiff's psychotic symptoms appeared to be "under good control when the claimant consistently takes his medications." (ECF No. 13-2 at 41.) The ALJ fails to point to any medical evidence in support of this conclusion. Plaintiff, on the other hand, points to substantial medical evidence in the record that contradicts this conclusion. (ECF Nos. 16-1 at 25-26; 20 at 7.) The Court is left to speculate as to what medical evidence the ALJ may have interpreted to support his conclusory assertion that Plaintiff's psychiatric symptoms were under "good control" when medicated. Therefore, the ALJ erred when he assigned little weight to Dr. Kistler's opinion because the ALJ's articulated rationale fails to meet the "specific and legitimate reasons" standard.
Finally, Plaintiff persuasively argues that crediting Dr. Kistler's opinion may change the outcome at the final step of determining disability.
Plaintiff argues that the ALJ erred because in making his adverse credibility determination the ALJ failed to provide clear and convincing reasons for discounting Plaintiff's testimony regarding the use of his hands and failed to consider corroborating evidence relating to the use of Plaintiff's hands. (Id. at 26-28; ECF No. 20 at 10-11.) In response, Defendant argues that the ALJ's credibility analysis is sufficient, but Defendant does not address the issue of whether the ALJ properly discounted Plaintiff's testimony about the use of his hands. (See ECF No. 18-1 at 8-10.) Plaintiff makes clear in his reply brief that Plaintiff's credibility argument is limited to the issue of Plaintiff's use of his hands. (ECF No. 20 at 10-11.)
The Ninth Circuit employs a "clear and convincing reasons" standard when reviewing an ALJ's decision to discredit a claimant's allegations.
Here, the ALJ summarized Plaintiff's testimony relating to the use of his hands as follows: Plaintiff "testified he has blisters on his hands, which causes his hands to bleed all the time. He testified that although he uses lotion, which helps, his skin continues to break out." (ECF No. 13-2 at 42.) The ALJ then goes on to conclude, "After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision." (Id.) The ALJ says nothing further about whether and why he discounted Plaintiff's testimony regarding the use of his hands. As the ALJ provided no analysis about whether and why he discounted Plaintiff's testimony regarding the use of his hands, the Court concludes that the ALJ's credibility analysis relating to Plaintiff's use of his hands fails to meet the Ninth Circuit's "clear and convincing reasons" standard for discounting a claimant's testimony.
Furthermore, in light of the vocational expert's opinion that adding the limitation of "occasional" handling and fingering to Plaintiff's residual functional capacity determination would preclude all work, Plaintiff has met his burden to show that the weight afforded to testimony about Plaintiff's use of his hands is material to the ALJ's disability determination. (See ECF Nos. 16-1 at 17; 13-2 at 91.) Thus, the ALJ committed legal error that was not harmless.
In sum, the ALJ erred in failing to articulate clear and convincing reasons for discounting Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms related to the use of his hands. Because Plaintiff's disability status may change depending on this credibility analysis, the ALJ committed legal error that is not harmless, and thus, warrants remedy.
When an ALJ commits error that is not harmless, "[t]he decision whether to remand for further proceedings or simply to award benefits is within the discretion of [the] court."
Here, the ALJ committed legal error that was not harmless, but this is not a case where further administrative proceedings would lack purpose. Therefore, remand for further proceedings is the appropriate remedy.
For the reasons stated above, the Court
(1) Plaintiff's motion for summary judgment (ECF No. 16) be
(2) The Commissioner's cross-motion for summary judgment (ECF No. 18) be
IT IS HEREBY ORDERED that any written objections to this Report and Recommendation must be filed with the Court and served on all parties
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than
Garrison, 759 F.3d at 1020.
