ALAN C. KAY, Sr., District Judge.
For the reasons to be discussed in its written order, the Court REVERSES the decision of the Commissioner and REMANDS for further administrative proceedings consistent with this Order.
On June 3, 2012, Plaintiff Christopher Marcus Betts ("Plaintiff") filed an application for Social Security Disability Insurance ("SSDI") benefits. AR 18. Plaintiff also filed for supplemental security income ("SSI") on June 14, 2012.
Plaintiff's former wife, on behalf of Plaintiff, filed a complaint on June 26, 2016 seeking a review of the denial of Plaintiff's applications for SSDI and SSI benefits. ECF No. 1. On March 15, 2017, Plaintiff filed his opening brief. ECF No. 14 ("Opening Br."). Defendant, the Acting Commissioner of Social Security
The Court held a hearing on June 13, 2017 regarding Plaintiff's requested review of the Commissioner's decision.
A district court has jurisdiction pursuant to 42 U.S.C. § 405(g) to review final decisions of the Commissioner of Social Security.
A final decision by the Commissioner denying Social Security disability benefits will not be disturbed by the reviewing district court if it is free of legal error and supported by substantial evidence.
In determining the existence of substantial evidence, the administrative record must be considered as a whole, weighing the evidence that both supports and detracts from the Commissioner's factual conclusions.
"To establish a claimant's eligibility for disability benefits under the Social Security Act, it must be shown that: (a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and (b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy."
The Social Security regulations set forth a five-step sequential process for determining whether a claimant is disabled.
At step one the ALJ will consider a claimant's work activity, if any. 20 C.F.R. § 404.1520(a)(4)(i). If the ALJ finds the claimant is engaged in substantial gainful activity he will determine that the claimant is not disabled, regardless of the claimant's medical condition, age, education, or work experience. 20 C.F.R. § 404.1520(b). Substantial gainful activity is work that is defined as both substantial — i.e. work activity involving significant physical or mental activities — and gainful — i.e. work activity done for pay or profit. 20 C.F.R. § 404.1572. If the ALJ finds that the claimant is not engaged in substantial gainful activity, the analysis proceeds to step two.
Step two requires the ALJ to consider the medical severity of the claimant's impairments. 20 C.F.R. § 404.1520(a) (4)(ii). Only if the claimant has an impairment or combination of impairments that "significantly limits [his] physical or mental ability to do basic work activities" will the analysis proceed to step three. 20 C.F.R. § 404.1520(c). If not, the ALJ will find the claimant is not disabled and the analysis stops. 20 C.F.R. § 404.1520(a)(4)(ii).
The severity of the claimant's impairments is also considered at step three. 20 C.F.R. § 404.1520(a)(4)(iii). Here, the ALJ will determine whether the claimant's impairments meet or medically equal the criteria of an impairment specifically described in the regulations.
Step four first requires the ALJ to determine the claimant's residual functional capacity ("RFC").
In the fifth and final step, the ALJ will once again consider the claimant's RFC, as well as his age, education, and work experience, in order to determine whether the claimant can perform other work. 20 C.F.R. § 404.1520(a)(4)(v). Here, the Commissioner is responsible for providing "evidence that demonstrates that other work exists in significant numbers in the national economy that [the claimant] can do." 20 C.F.R. § 404.1560(c)(2). If the claimant is unable to perform other work, he is deemed disabled; if he can make an adjustment to other available work, he is considered not disabled. 20 C.F.R. § 404.1520(g)(1).
The ALJ found that at step one, Plaintiff had not engaged in gainful activity since October 25, 2010, the alleged onset date, and at step two, that he suffered from the following severe impairments: cirrhosis of the liver, hypertension, nonalcoholic steatohepatitis, attention deficit hyperactivity disorder, mood disorder, and a history of alcohol abuse. AR 20-21. Plaintiff disagrees with this determination because he also believes that he had a severe impairment of psoriasis. Opening Br. at 5.
At the third step, the ALJ found that Plaintiff did not have an impairment or a combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 21. The ALJ did not discuss whether Plaintiff met listing 8.05 which covers skin conditions, such as psoriasis.
Moving to step four, the ALJ determined that Plaintiff has the RFC to perform light work. AR 22. That is, he could: lift and carry up to 10 pounds frequently and 20 pounds occasionally and stand, walk, or sit 6 hours out of an 8-hour workday with customary breaks.
Plaintiff argues that the ALJ improperly rejected the opinion of Plaintiff's primary treating physician, Dr. Jonathan Kim, that Plaintiff's psoriasis would impact his ability to work. Plaintiff argues that this error resulted in improper findings at steps two and three and the RFC determination. Opening Br. at 17; Reply Br. at 3-4.
A treating physician's opinion should be given controlling weight when it is "supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the] case record."
On March 26, 2014, Dr. Kim reported that Plaintiff had psoriasis that has persisted for at least three months despite continuing treatment. AR 552. Dr. Kim further reported that the pain, itching, and sensitivity from the psoriasis would impact Plaintiff's ability to work.
The ALJ noted Dr. Kim's opinion on the psoriasis. AR 28. The ALJ rejected Dr. Kim's functional assessment as a whole because it was not supported by medically acceptable clinical or diagnostic findings and was inconsistent with the objective medical evidence and Dr. Kim's own treatment records.
While the ALJ "is not required to discuss evidence that is neither significant nor probative,"
Although the ALJ did not have to agree with each of Dr. Kim's opinions, she must have, at the very least, offered sufficiently specific and legitimate reasons for each opinion she rejected; the ALJ may not specifically reject some opinions and wholly disregard others.
District courts routinely find error where the ALJ fails to address opinions or limitations found by treating physicians. For example, in
Defendant argues that the ALJ's rejection of Dr. Kim's opinion on Plaintiff's psoriasis was proper because: (1) the ALJ decided to give greater weight to the opinion of examining doctor, Dr. Kevin Adams, instead of Dr. Kim; (2) Dr. Kim's opinion was inconsistent with his own treatment records and the record as a whole; and (3) "additional records by the ALJ support [the] RFC finding and consideration of Plaintiff's psoriasis," such as treatment notes from Dr. Robert Dy. Ans. Br. at 6-8. However, the Court cannot affirm the ALJ's decision on grounds which the ALJ did not rely. This Court is "constrained to review the reasons the ALJ asserts."
Furthermore, as previously discussed, Dr. Adams did not opine on whether Plaintiff's psoriasis would impact Plaintiff's ability to work and his report merely mentioned that Plaintiff had psoriasis. AR 450-55. Likewise, Dr. Dy merely stated that the patient was troubled by psoriasis, which he feels has slowly improved, but did not opine on whether the psoriasis would impact Plaintiff's ability to work. AR 482. Accordingly, the Court does not find Defendant's arguments persuasive.
Plaintiff further argues that this error was not harmless because it impacted the ALJ's findings at steps two and three and the RFC determination. Had the ALJ properly considered Dr. Kim's opinion, the ALJ might have: (1) found psoriasis to be severe at step two, which would further impact the ALJ's analysis at step three; and/or (2) given a more restrictive RFC than the one given in her decision.
Plaintiff further argues that the ALJ erred at step two for failing to find Plaintiff's psoriasis to be severe. Defendant seemingly concedes this point because, as discussed in more detail herein, Defendant merely presents an argument to show why such error was harmless. Ans. Br. at 6.
At step two, an impairment or combination of impairments is considered "severe" if it significantly limits an individual's physical or mental abilities to do basic work activities.
The record is full of references to Plaintiff's psoriasis and Plaintiff's psoriasis treatment.
Defendant argues that even if the ALJ should have found the psoriasis severe at step two, that error would be harmless because the ALJ "addressed the condition extensively when determining Plaintiff's RFC." Ans. Br. at 6 (citing
Plaintiff argues that the ALJ erred because she did not discuss Plaintiff's WAIS-IV test results other than Plaintiff's full scale IQ of 92.
As to processing speed, Dr. Perreira found Plaintiff's ability to process simple or routine visual material without making errors is in the low average range when compared to his peers, performing better than only 14% of them in processing speed tasks. AR 444. Dr. Perreira further explained:
The ALJ gave significant, but not full weight, to Dr. Perreira's opinions. AR 28-29. She detailed Dr. Perreira's findings, including that Plaintiff reported a history of ADHD and bipolar disorder and that in Plaintiff's mental status examination he revealed an overall unremarkable mental status. AR 27. The ALJ discussed that Dr. Perreira found that Plaintiff was able to accurately respond to questions, his speech was organized and articulate, his thought organization was linear and consistent, his perception was normal, and his insight and judgment were normal.
As the Court previously discussed, the ALJ "is not required to discuss evidence that is neither significant nor probative,"
The Court finds that Plaintiff's WAIS-IV sub-tests regarding working memory and processing speech were significant and probative and therefore the ALJ erred in failing to discuss why she did not include them in her RFC finding. In
The court agreed with the plaintiff and held that the ALJ erred when failing to discuss the test results regarding processing speed because they were significant and probative evidence.
Likewise, here, the ALJ did not incorporate Plaintiff's WAIS-IV sub-test results in regard to working memory and processing speed into her RFC finding.
Defendant argues that the ALJ's RFC finding was proper because it was supported by substantial evidence from Plaintiff's treating psychiatrist, Dr. Rodney K. Yamaki and Dr. Perreira, and agency regulations require that controlling weight be given to a treating doctor when that opinion is consistent with the record and other opinions.
Dr. Yamaki opined that Plaintiff was capable of: understanding and remembering simple work instructions; maintaining regular job attendance and persisting at simple, repetitive work tasks on a consistent basis under ordinary supervision; getting along with supervisors and co-workers if contact were minimal; and adapting/coping with a low demand, entry-level job. AR 435-36. However, Dr. Yamaki did not opine on whether Plaintiff would be able to understand, remember, and carry out both detailed and complex tasks, which the ALJ specifically concluded in her RFC finding and was, at the very least, not fully supported by the WAIS-IV sub-test results. In addition, the ALJ adopted Dr. Perreira's RFC opinion that Plaintiff was not significantly limited but that RFC opinion failed to discuss Plaintiff's ability to understand, remember, and carry out both detailed and complex tasks, which was addressed in the WAIS-IV sub-test results.
Defendant also argues that the ALJ would be impermissibly substituting her own opinion for the opinion of a physician if she were to rely on the WAIS-IV sub-test results in making her RFC finding. However, the WAIS-IV sub-test results are from the report of Plaintiff's psychological consultative examiner. Therefore, the ALJ would not be "playing doctor" if she relied on these results. Accordingly, the Court finds that the ALJ erred in failing to discuss why she did not incorporate the WAIS-IV sub-test results into the RFC determination and remands the case for the proper consideration of this evidence.
As previously discussed, the errors at issue were not harmless. "An error is harmless only if it is inconsequential to the ultimate nondisability determination . . . or if despite the legal error, the agency's path may reasonably be discerned."
Had the ALJ properly considered Dr. Kim's opinion, the evidence of Plaintiff's psoriasis, and the WAIS-IV sub-test results, the ALJ would have reached a different finding at step two and might have reached a different finding at step three. In addition, the ALJ may have given a more restrictive RFC than the one given in her decision. That, in turn, might have led to a finding that Plaintiff is disabled. In light of these errors, this Court cannot confidently conclude that no reasonable ALJ would reach a different decision. Accordingly, the ALJ's errors were not harmless and her decision must be reversed.
"Remand for further administrative proceedings is appropriate if enhancement of the record would be useful."
In this case, the Court finds that enhancement of the record would be useful. The Court, therefore, holds that remand for further proceedings is appropriate for the ALJ to properly consider the evidence of Plaintiff's psoriasis, the opinion of Plaintiff's treating physician, Dr. Kim, on the psoriasis, and the WAIS-IV sub-test results. The ALJ is instructed to take whatever further action is deemed appropriate and consistent with this decision.
For the foregoing reasons, the Court REVERSES the Commissioner's decision denying Social Security disability benefits and REMANDS to the ALJ for further proceedings consistent with this Opinion.
IT IS SO ORDERED.
The main focus of Dr. Adams's examination is Plaintiff's liver cirrhosis. AR 450. He solely mentioned that Plaintiff had psoriasis. AR. 450-455. Dr. Adams opined that Plaintiff's functional capacity was not limited. AR 455. Dr. Dy merely stated that the patient was troubled by psoriasis, which he feels has slowly improved. AR 482. However, neither of these doctors opined on whether Plaintiff's psoriasis would impact his ability to work.
However, even if the Court were to apply the "specific and legitimate" standard as opposed to the "clear and convincing" standard, the Court notes that its ultimate finding—that the ALJ erred in evaluating Dr. Kim's opinion—would be the same because the ALJ did not provide any specific and legitimate reasons for rejecting it.
functional assessment. This opinion is inconsistent with the objective medical evidence as whole already discussed above in this decision. Most importantly, this opinion is also inconsistent with Dr. Kim's own treatment records as described in detail above.
AR 28 (emphasis added).
Indeed, the ALJ provided no examples of where the record supported her findings of inconsistencies between Dr. Kim's opinion on the psoriasis and his own treatment records or the objective medical evidence. The ALJ also did not explain how Dr. Kim's opinion on the psoriasis was not supported by medically acceptable clinical or diagnostic findings. Nor did the ALJ link the additional reason she provided for rejecting Dr. Kim's overall conclusion—that Dr. Kim relied heavily on Plaintiff's subjective report of symptoms and limitations—to Dr. Kim's opinion on Plaintiff's psoriasis. Therefore, the Court finds that the ALJ erred because she did not provide clear and convincing reasons for rejecting Dr. Kim's opinion on Plaintiff's psoriasis.
Defendant also incorrectly argues that Plaintiff did not raise the argument that his psoriasis met a listing until after the ALJ's decision. In Plaintiff's pre-trial brief to the ALJ, Plaintiff argues that "the psoriatic condition arguably meets the listings. Even without considering the listings, if [Plaintiff's] condition flares up on a regular basis that affects his ability to do SGA." AR 310.
On remand, Plaintiff will have an opportunity to establish that the psoriasis meets or equals a listing at step three, which the ALJ will then have to evaluate.
Second, Plaintiff states that the Supreme Court held in
At the ALJ's hearing, Plaintiff's attorney asked the VE whether Plaintiff would be able to perform his past relevant work if the "processing of complex information [would] not be done at the normal rate of speed expected by an employer and there would be frequent errors in doing complex work tasks." AR 63. Based on this hypothetical, the VE responded that Plaintiff would not be able to perform past relevant work.