ALLISON CLAIRE, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner"), denying her application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 401-34.
Plaintiff applied for DIB on December 24, 2013. Administrative Record ("AR") 21 (Decision).
On June 24, 2016, the ALJ found plaintiff "not disabled" under Sections 216(i) and 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d). AR 21-28 (decision), 29-32 (exhibit list). On August 21, 2017, after receiving a "Request for Review of Hearing Decision/Order" and a "Statement of Claimant with representative briefs dated July 17, 2016" as additional exhibits, the Appeals Council denied plaintiff's request for review, leaving the ALJ's decision as the final decision of the Commissioner of Social Security. AR 1-4 (decision and additional exhibit list).
Plaintiff filed this action on October 23, 2017. ECF No. 1; see 42 U.S.C. § 405(g). The parties consented to the jurisdiction of the magistrate judge. ECF Nos. 5, 6. The parties' cross-motions for summary judgment, based upon the Administrative Record filed by the Commissioner, have been fully briefed. ECF Nos. 11 (plaintiff's summary judgment motion), 14 (Commissioner's summary judgment motion), 17 (plaintiff's reply).
Plaintiff was born in 1952, and accordingly was, at age 61, a person of advanced age under the regulations, when she filed her application.
The Commissioner's decision that a claimant is not disabled will be upheld "if it is supported by substantial evidence and if the Commissioner applied the correct legal standards."
Substantial evidence is "more than a mere scintilla," but "may be less than a preponderance."
Although this court cannot substitute its discretion for that of the Commissioner, the court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion."
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities."
The court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was `inconsequential to the ultimate nondisability determination.'"
Disability Insurance Benefits and Supplemental Security Income are available for every eligible individual who is "disabled." 42 U.S.C. §§ 402(d)(1)(B)(ii) (DIB), 1381a (SSI). Plaintiff is "disabled" if he is "`unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment. . . .'"
The Commissioner uses a five-step sequential evaluation process to determine whether an applicant is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4);
20 C.F.R. § 404.1520(a)(4)(i), (b).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. 20 C.F.R. §§ 404.1512(a) ("In general, you have to prove to us that you are blind or disabled"), 416.912(a) (same);
The ALJ made the following findings:
AR 23-28.
As noted, the ALJ concluded that plaintiff was "not disabled" under Sections 216(i) and 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d). AR 28.
Plaintiff alleges that the ALJ erred by (1) failing to provide clear and convincing reasons for rejecting the opinions of treating physicians Drs. Deriven and Sloop; (2) failing to provide clear and convincing reasons for rejecting plaintiff's testimony; (3) failing to provide legally sufficient reasons for rejecting the testimony of lay witnesses; (4) providing a residual functional capacity that lacks support from substantial evidence; and (5) failing to support with substantial evidence his finding that plaintiff is capable of performing her past work. ECF No. 11 at 13-33. Plaintiff requests that the matter be remanded to the Commissioner for an immediate award of benefits.
The record before the ALJ included the medical opinions of Sally Vertolli, nurse practitioner; plaintiff's treating physicians, J. Randal Sloop, M.D. and Vedat Deviren, M.D.; and those of a state agency consultant, E.L. Gilpeer, M.D. AR 26.
Dr. Gilpeer limited plaintiff to occasionally climbing ramps/stairs, never climbing ladders/ropes/scaffolds, occasionally balancing, stopping, kneeling, crouching or crawling. AR 102. Dr. Gilpeer found plaintiff could lift 20 pounds occasionally and 10 pounds frequently, could stand for about 6 hours during an 8-hour workday and sit for 6 hours during an 8-hour workday. AR 101-02. Dr. Gilpeer's findings were as to plaintiff's condition as of the date last insured, and were based on notes from UCSF Medical Center dated 9/12/2011 (2 years status post L2 to L4 fusion and revision to L4 fusion for adult scoliosis), which noted plaintiff had no apparent distress, walked with a nonantalgic gait, walked without difficulty on heals and tows, stood normally, had 5/5 strength in her lower extremities, had intact sensation in the L1 through S1 nerve root distributions with normal reflexes in the lower extremities, and a well-healed surgical wound. AR 102. Although muscle tenderness was noted, the report said that plaintiff "continues to do quite well."
Plaintiff saw Nurse Vertolli for primary care from at least 2003 to February 2016. AR 345-366, 372-74, 386-402, 630-78. Dr. Sloop is listed as having reviewed and agreed with contemporaneous treatment notes on July 6, 2013 (AR 346) and January 20, 2015 (AR 399). In December of 2006, Nurse Vertolli noted that plaintiff had long been struggling with back pain due to scoliosis, and the pain was progressing with increased pain in the mid-back, lower thoracic, and upper lumbar regions. AR 649. Multiple imaging scans from January 2007 showed prominent scoliosis deformity. AR 295-96, 317. On January 25, 2007, Dr. Vedat Deviren performed back surgery on plaintiff, which included a 13-level osteotomy from T4 to L4, segmental spinal instrumentation from T4 to L4, posterior spinal fusion from T4 to L5 and local bone graft. AR 267-69.
By March of 2008, a progress note from Skyway Primary Care, which employed Nurse Vertolli and Dr. Sloop, stated that plaintiff was having migratory pain in her thoracic area, shoulders, and lower back; plaintiff described her pain level as "bad." AR 644. Nurse Vertolli's notes from August and September of 2008 indicate plaintiff's back pain persisted and she was experiencing muscle spasms in her upper back. AR 641-42. By October of 2008, notes reflect plaintiff' reported her back pain was "killing" her. AR 638.
In December of 2008, Dr. Deviren noted plaintiff was suffering nerve root pain and her upper hardware had become prominent. AR 552. In a December 8, 2009 letter, Dr. Deviren noted that plaintiff experienced an episode of acute upper back/shoulder pain with residual pain that persisted 6-8 weeks past the event, though more recently she was doing well. AR 609. X-Rays showed that the right top two screws of plaintiff's rod had pulled out from the vertebrae. AR 609. In February of 2009, plaintiff underwent surgery to have the hardware from T4 to T6 removed. AR 552, 598, 602. She was discharged on February 24, 2009, but suffered an infection in the surgical wound shortly thereafter. AR 557, 553. Plaintiff was admitted through the emergency room for her wound infection. AR 269, 518, 536, 542, 553. She was taken into surgery to remove her hardware. AR 272-73, 553, 564. Plaintiff was discharged March 4, 2009 with a course of IV antibiotics. AR 272, 530, 542-47, 561-64. Plaintiff had further corrective surgery, including a spinal fusion from T1 through L4, on April 28, 2009. AR 273, 275, 465, 481, 497).
On April 30, 2009 plaintiff reported sharp shooting pain and numbness in her right leg. AR 472, 495. Plaintiff underwent surgery to redo the laminectomies at T4 to T7 and hardware removal and re-instrumentation from T1 to L4. AR 475-77, 487-90. Plaintiff was discharged May 5, 2009 with instruction to avoid any twisting, bending, and heavy lifting. AR 466-67. In a letter dated July 13, 2009, Dr. Deviren noted that plaintiff was approximately two and a half months status post-surgery, and had experienced a long course of recovery that included infection, hardware removal, and hardware replacement/revision fusion. AR 456. Dr. Deviren noted that though plaintiff was healing well at the time she had some residual pain in her neck, shoulder, and buttock, and recommended physical therapy and additional surgery to promote bone growth and give her a solid fusion.
In a letter dated April 12, 2010, Dr. Deviren noted that despite doing well the past November, plaintiff had increased left-side parascapular pain. AR 705. Examination revealed extreme tenderness to palpitation over plaintiff's left die trapezius and paraspinal region, as well as pain over the greater trochanters of her hips bilaterally.
In November of 2014, Dr. Deviren completed a Medical Source Statement in which he assessed the following limitations: plaintiff can carry and lift no more than 10 pounds. AR 405. She can stand and/or walk for less than 2 hours in an 8-hour workday due to a long spinal fusion that prevents bending, lifting, and sitting for long periods of time.
Nurse practitioner Sally Vertolli filled out a medical source statement on February 2, 2016, which was signed by Dr. Sloop. AR 372-74. Nurse Vertolli opined that plaintiff was limited to lifting less than 10 pounds both frequently and occasionally, that she could stand and sit less than 2 hours in an 8-hour workday, with the need to elevate her legs every two hours. AR 372. Nurse Vertolli stated that plaintiff could work no hours in an 8-hour workday; that she could never climb, balance, stoop, kneel, crouch, or crawl; that she could rarely or never reach, and she could only occasionally handle or finger. AR 373. Nurse Vertolli stated plaintiff could not work around moving machinery, and that she would need to lie down 1-2 times daily. AR 373. Nurse Vertolli concluded plaintiff has been totally unable to perform even sedentary work since March of 2009.
The ALJ gave great weight to the state agency consultant's assessment. AR 26. The ALJ gave little weight to the assessment of Nurse Vertolli and Dr. Sloop, and to the assessment of Dr. Deviren.
The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals.
"The general rule is that conflicts in the evidence are to be resolved by the Secretary and that his determination must be upheld when the evidence is susceptible to one or more rational interpretations."
The ALJ erred in discounting the medical opinion of Dr. Deriven and Dr. Sloop/Nurse Vertolli. As a preliminary matter, the Commissioner argues that the ALJ was not required to give the Sloop/Vertolli opinion the same level of weight as information from an accepted medical source because, working on her own, Nurse Vertolli is not an accepted medical source and there is no evidence that Dr. Sloop was actually supervising Nurse Vertolli's care of the plaintiff. ECF No. 14 at 15;
The ALJ gave two reasons for discrediting the Dr. Sloop/Nurse Vertolli opinion and the Dr. Deviren opinion. The ALJ asserted that, (1) "their opinions are contradicted by the treatment records which noted controlled pain and claimant reports of walking up to one to three miles (Exhibits 15F/20 and 5F/1)," and (2) their "opinions occurred well after the date last insured and are not consistent with the claimant's complaints and level of treatment from 2010 through the date last insured of December 31, 2011." AR 26-27. Neither of these reasons withstand scrutiny.
As to conflict with the record, the ALJ's citations are not persuasive. At Exhibit 15F/20, notes from Dr. Deviren dated January 21, 2011 indicate that plaintiff could, at the time, walk about three miles on weekends and otherwise 30 minutes every other day. AR 698. The same notes report that plaintiff was experiencing worse low back pain, especially on the left side, and a return of pain over the bilateral greater trochanters, and buttock pain.
As is apparent from the record discussed in detail above, these discrete medical notes do not contradict the ongoing and serious medical treatment plaintiff had been receiving for her back. An ALJ may not reject a doctor's opinion in conclusory fashion, by merely stating that it is unsupported by the record.
As to the fact that the medical opinions were issued after the date last insured, case law unambiguously allows for the consideration of such opinions. The Ninth Circuit has long held that "medical evaluations made after the expiration of a claimant's insured status are relevant to an evaluation of the preexpiration condition."
Because the ALJ did not provide adequate specific or legitimate reasons for discrediting Drs. Deviren and Sloop and Nurse Vertolli, the undersigned finds reversible error. The error is not harmless because it alters the finding on disability, as described further below. The record does not contradict the assessments of the treating physicians. Thus, the undersigned finds the medical opinions of Dr. Sloop/Nurse Vertolli (AR 372-74) and Dr. Deviren (AR 405-06) should be credited in full.
As discussed, the ALJ erred in rejecting Dr. Sunde's opinion and that error was not harmless. Accordingly, the court is authorized "to `revers[e] the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.'"
More specifically, the district court should credit evidence that was rejected during the administrative process and remand for an immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.
Under the second step in the remand analysis, the court must "review the record as a whole and determine whether it is fully developed, is free from conflicts and ambiguities, and all essential factual issues have been resolved."
In this case, if Dr. Deviren and Dr. Sloop/Nurse Vertolli's opinions were credited as true — indeed, if even just one of their opinions were credited as true — plaintiff would necessarily be found disabled under the applicable regulations. Dr. Deviren opined that plaintiff cannot sustain an 8-hour workday on a full time 40 hour per week basis. AR 406. He stated that has not been able to perform any work since January 25, 2007.
It is clear from the record that if the physicians' opinions are properly credited, plaintiff must necessarily be found disabled. When the VE was asked whether an individual limited to sedentary work who could not climb, stoop, kneel, crouch or balance and who could work only part time, four hours per day could perform any work, the VE answered in the negative. AR 84. In fact, in the hearing transcript the ALJ himself explicitly found that the RFC described in the Dr. Sloop/Nurse Vertolli opinion was "not compatible with full time work." AR 86. Because the VE and the ALJ found that no jobs were available for plaintiff when the physicians' opinions were credited, plaintiff is disabled under the Act.
Where the above steps are satisfied, this court must exercise its discretion in determining whether to remand for further proceedings, or for the immediate calculation and award of benefits.
Here, the record leaves no doubt that the plaintiff is disabled within the meaning of the Act. The VE and ALJ both stated at the hearing that the physicians' opinions precluded the maintenance of employment. AR 84-86. Nothing in the record contradicts the physicians' findings; in fact, the record overall supports them. Accordingly, the court finds that plaintiff is disabled within the meaning of the Act and no further fact finding is necessary.
For the reasons set forth above, IT IS HEREBY ORDERED that:
SO ORDERED.
