ANDREW J. WISTRICH, Magistrate Judge.
Plaintiff filed this action seeking reversal of the decision of the defendant, the Acting Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits ("DIB"). The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.
Plaintiff filed an application for DIB benefits on August 25, 2009, alleging that she had been disabled since March 1, 2007 due to degenerative disc disease, diabetes, obesity, sleep apnea, fibromyalgia, chronic obstructive pulmonary disease ("COPD"), allergies, anxiety, and depression. [Administrative Record ("AR") 28, 122-123]. Plaintiff's application was denied initially and upon reconsideration. [JS 2; AR 61-64, 66-70]. Plaintiff requested an administrative hearing, which was conducted before an administrative law judge (the "ALJ") on May 25, 2011. [AR 37-55]. Plaintiff, who was not represented during the hearing, testified on her own behalf. [AR 39]. Testimony also was received from Troy Scott, a vocational expert. [AR 51].
On June 22, 2011, the ALJ issued a written decision denying plaintiff's application for benefits. [AR 23-36]. The ALJ found that plaintiff had the following severe impairments: degenerative disc disease, diabetes, and obesity. [AR 28]. The ALJ determined, however, that plaintiff's impairments, singly or in combination, did not meet or equal an impairment included in the Listing of Impairments (the "Listing"). [AR 29-30].
Plaintiff was born on February 14, 1945, and was sixty-six years old when the ALJ issued her decision. [AR 41, 122]. Plaintiff began her employment with Delta Sigma Theta Head Start/State Pre-School on March 12, 1978. [AR 321]. From 1978 until 2007, she worked at a Head Start preschool as a Family Service Coordinator, which involved working with the families of students and providing counseling workshops. [AR 321]. During the hearing, plaintiff said that she had been receiving social security retirement benefits since 2007. [AR 41]. She testified that after terminating her employment with Head Start in 2007, she had worked for the County of San Bernardino in 2009 but was fired because she "couldn't keep up with the work." [AR 42]. She also testified that she worked for Catholic Cemeteries but "had to give that up because of the migraine headaches that were so bad." [AR 42]. The documentary evidence indicates that plaintiff went back to work on January 16, 2009 and worked until April 8, 2009. [AR 123].
The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error.
Plaintiff contends that the ALJ improperly disregarded the opinions of her treating and examining physicians. [JS 4]. Plaintiff also contends that the ALJ failed to provide legally sufficient reasons for rejecting plaintiff's testimony. [JS 13].
Plaintiff alleges that the ALJ erred in disregarding the opinions of Dr. Earl Young, Dr. Paul Clement, Dr. Magda Robinson. [AR 4].
In general, "[t]he opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant."
The ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting an uncontroverted treating source opinion.
Earl S. Young, M.D., a specialist in sleep medicine, treated plaintiff for obstructive sleep apnea. [AR 192]. The record indicates that Dr. Young treated plaintiff five times between August 2007 and October 2007. [AR 192-209]. Dr. Young performed two overnight sleep studies on plaintiff in 2007 and encouraged plaintiff to use a continuous positive airway pressure ("CPAP") mask to address her sleep apnea. [AR 192-209].
In an October 2007 letter to plaintiff's treating internist, Dr. Richard B. Williams, Dr. Young opined that plaintiff had obstructive sleep apnea, and that she "should not return to work until she is no longer tired from her apnea or depression." [AR 192].
The ALJ rejected Dr. Young's opinion, reasoning that plaintiff's sleepiness did not prevent her from performing activities of daily living. [AR 31]. The ALJ also noted that plaintiff's sleep apnea improved with treatment, and that she complained of sleepiness during the day only when she was having "treatment issues." [AR 28].
Substantial evidence supports the conclusion that plaintiff's complaints of daytime sleepiness were related to "treatment issues," and that her sleep issues were effectively treated aside from "temporary exacerbations related to temporary inadequate treatment." [AR 31]. Although plaintiff told Dr. Young that she had been unable to use her CPAP mask due to problems with its fit, he noted on September 6, 2007 that plaintiff was going to undergo a CPAP trial using another mask. She underwent such a trial during a sleep study dated September 29, 2007. Dr. Young reported that plaintiff's obstructive sleep apnea was "significantly improved with successful CPAP titration" using a comfort gel mask. He encouraged her to continue using her CPAP. [AR 192, 194, 200, 207].
During the same time period, plaintiff's treating internist, Dr. Williams, noted that plaintiff had been unable to use her CPAP mask due to an air leak, which led her to be very fatigued during the day. However, plaintiff said that she would contact Dr. Young about repairing it or replacing it, and she also said that she was due to have a repeat sleep study. Dr. Williams also said that he would release plaintiff back to work when she got her CPAP mask back. [AR 217-219]. Neither Dr. Williams nor Dr. Young indicated that plaintiff was unable to obtain a different mask for her CPAP.
Dr. Robinson, a board-certified family physician who treated plaintiff intermittently beginning in 2008, noted in February 2010 that plaintiff said she had not been using her CPAP machine at night for over a year because the mask did not fit properly, and that she reported increased daytime sleepiness, fatigue, and chronic daytime headaches. [AR 453]. On May 3, 2010, plaintiff reported to Dr. Robinson that she was using her CPAP with a new mask, and that it helped with her day sleepiness and alertness. [AR 449]. Nothing in the record suggests that plaintiff could not have obtained the new mask before May 2010. Therefore, the ALJ reasonably rejected Dr. Young's opinion that plaintiff's sleep apnea was a disabling impairment.
The ALJ permissibly concluded that Dr. Young's opinion that plaintiff "was too tired in the morning to go to work" was inconsistent with plaintiff's testimony regarding the activities of her daily life. [AR 30-31].
Magda Robinson, M.D. is a board-certified family physician who treated plaintiff intermittently since 2008 for various medical issues. [AR 429]. In a letter dated March 10, 2011, Dr. Robinson stated that plaintiff has Diabetes Mellitus Type II, sleep apnea, anxiety, major depression, hypertension, elevated cholesterol, occipital neuralgia, COPD, migraine headache, and anemia. [AR 429]. She noted that plaintiff has emotional factors that contribute to her functional limitations, such as major depression and anxiety disorder. [AR 429]. Dr. Robinson opined that these medical conditions make it very hard for plaintiff to perform job duties consistently, and "have severely impaired her ability to permanently work." [AR 429]. Dr. Robinson also completed an RFC questionnaire on behalf of plaintiff and concluded that plaintiff could not sit or stand and/or walk for more than thirty minutes in an eight-hour work day. [AR 457-458].
The ALJ rejected Dr. Robinson's opinion because it was not corroborated by the treatment record or by any objective evidence in the record. [AR 31].
The ALJ rationally concluded that Dr. Robinson's treatment record does not support her opinion that plaintiff was severely impaired in her ability to work.
Dr. Robinson's disability findings and opinion are also inconsistent with the consultative examination findings and opinions of Sandra M. Eriks, M.D. Dr. Eriks conducted an Internal Medicine Evaluation of plaintiff at the request of the Department of Social Services on March 16, 2009. [AR 372-376]. Based upon plaintiff's self-reported medical history, physical examination of plaintiff, and review of medical records, Dr. Eriks opined that plaintiff was able to lift and carry twenty pounds occasionally and ten pounds frequently. [AR 376]. Plaintiff could also stand and/or walk for six hours out of an eight-hour workday and could sit for six hours out of an eight-hour workday. [AR 376]. Postural limitations were noted to be occasional climbing, stopping, kneeling, and crouching, but there were no manipulative, visual, communicative, or environmental limitations. [AR 376]. Thus, Dr. Robinson's assessment that plaintiff was severely impaired in her ability to work is inconsistent with the findings of Dr. Eriks, who opined that plaintiff was able to perform medium work.
Dr. Eriks conducted a second evaluation of plaintiff eight months later, on November 23, 2009, at which time plaintiff had been working full-time for six weeks selling funeral plots. [AR 400]. Dr. Eriks concluded that plaintiff was able to lift and carry fifty pounds occasionally and twenty-five pounds frequently. [AR 404]. Dr. Eriks also opined that plaintiff could stand and/or walk six hours out of an eight-hour workday and could sit six hours out of an eight-hour workday. [AR 404]. She added that there were no postural, manipulative, visual, communicative, or environmental limitations. [AR 404].
Dr. Robinson's opinion is not supported by her own treatment record, plaintiff's testimony, or the findings of the examining internist, Dr. Eriks. Thus, the ALJ properly rejected Dr. Robinson's treating opinion.
In a January 21, 2009 letter, Paul W. Clement, Ph.D. stated that he had seen plaintiff a total of fifty-four times beginning in May 2006, with the most recent session of psychotherapy occurring on October 30, 2008. [AR 285]. His initial diagnostic impressions were "specific phobia" and eating disorder NOS. [AR 285]. After Dr. Clement began treating the plaintiff, she began reporting severe harassment by her supervisor at work, and Dr. Clement diagnosed "Major Depressive Disorder, Severe without Psychotic Features." Plaintiff never returned to work. [AR 285]. Dr. Clement wrote that although he "repeatedly encouraged [plaintiff] to return to work, her multiple health problems, high anxiety, and depression have prevented her from doing so." [AR 286].
A treating physician such as Dr. Clement "bring[s] a unique perspective to the medical evidence. The treating physician's continuing relationship with the claimant makes him especially qualified to form an overall conclusion as to the plaintiff's functional capacities and limitations, as well as to prescribe or approve the overall course of treatment."
Dr. Clement's speciality is also relevant. He is a licensed psychologist and a diplomate in Clinical Psychology certified by the American Board of Professional Psychology. Thus, his speciality makes him well-qualified to assess plaintiff's psychological condition.
Finally, plaintiff's treatment history with Dr. Clement consisted of psychotherapy sessions beginning in May 2006 and continuing up until January 2009, when Dr. Clement opined that plaintiff was unable to return to work. [AR 285]. Therefore, Dr. Clement had the benefit of treating plaintiff frequently over a period of almost three years. [AR 285]. The Commissioner's regulations recognize the importance of such longitudinal evidence.
The ALJ rejected Dr. Clement's opinion on the ground that Dr. Clement would not have encouraged plaintiff to return to work if plaintiff's symptoms truly prevented her from doing so. [AR 29]. The ALJ surmised that Dr. Clement was "inappropriate[ly]" relying on plaintiff's subjective symptoms complaints in making that assessment. [AR 29].
Even if Dr. Clement encouraged plaintiff to return to work, Dr. Clement's subjective judgments regarding plaintiff's disabled status "are important, and properly play a part in their medical evaluations. Accordingly, the ultimate conclusions of [treating] physicians must be given substantial weight; they cannot be disregarded unless clear and convincing reasons for doing so exist and are set forth in proper detail."
The ALJ's rejection of Dr. Clement's disability opinion on the ground that it was premised solely on plaintiff's subjective symptoms also ignores the findings and opinions of examining psychologist Dr. Barry A. Halote, which are consistent with Dr. Clement's assessment. Dr. Halote conducted two psychological treatment evaluations on November 6, 2008 and January 7, 2009. [AR 320, 366-371]. Dr. Halote and Dr. Clement both concluded that plaintiff was suffering from a "Major Depressive Disorder"and opined that plaintiff was unable to work. [AR 285, 363]. This lends additional support to Dr. Clement's opinion.
Therefore, the ALJ's reasons for rejecting Dr. Clement's findings and opinions are not based on substantial evidence and do not reflect application of the proper legal standards.
Barry A. Halote, Ph.D., a licensed psychologist and a workers' compensation Qualified Medical Evaluator, reviewed plaintiff's medical records, conducted a mental status examination, and administered psychological testing on November 6, 2008 in connection with plaintiff's worker's compensation claim. [AR 320]. Dr. Halote concluded that plaintiff was suffering from a "Major Depressive Disorder, Single Episode-Mild" secondary to her reported cumulative stress experienced in her work place. [AR 363]. Dr. Halote gave plaintiff a Global Assessment of Functioning ("GAF") score of 51,
The ALJ rejected Dr. Halote's opinion because Dr. Halote's statements were not consistent with his record of an essentially benign mental status examination. The ALJ concluded that it was "apparent that Dr. Halote is advocating for the claimant" and therefore was not an unbiased medical source. [AR 29].
Although Dr. Halote noted that plaintiff had worried facial expressions, admitted suicidal ideation without plan or intent, and was withdrawn throughout the mental status evaluation process, he noted nothing else unusual or abnormal about plaintiff's appearance. Plaintiff's mood and affect were appropriate to the situation, there was no indication of hyperactivity or psychomotor retardation, and plaintiff remained cooperative, alert, and attentive throughout the evaluation. [AR 328-329, 369-370].
In addition to a mental status examination, Dr. Halote also conducted an extensive review of plaintiff's medical records dating from 1997 to 2008, took a history from plaintiff, performed psychological testing, and interpreted and evaluated those test results. [AR 320-365]. An overall assessment of the psychological testing administered revealed that plaintiff "tends to react to stress, including responsibility, with physical symptoms, and resists attempts to explain her symptoms in terms of emotional or psychological factors." [AR 362]. Dr. Halote also noted that plaintiff displays depressive symptoms, can be described as generally anxious tense, and nervous, and tends to be restless and irritable." [AR 362].
Thus, Dr. Halote did not rely exclusively on plaintiff's mental status examination to support his findings, diagnosis, and functional assessment. He also considered plaintiff's psychological test results, subjective history, and medical records to conclude that she was suffering from a "Major Depressive Disorder, Single Episode-Mild." The ALJ's conclusion that Dr. Halote's opinion was inconsistent with an "essentially benign" mental status examination was not based on substantial evidence. The ALJ failed to acknowledge the psychological testing or medical records supporting Dr. Halote's finding of disability.
Furthermore, the ALJ erred in rejecting the opinion of Dr. Halote on the basis that it was "apparent" that Dr. Halote was "advocating" for plaintiff. [AR 29]. No evidence in the record supports that characterization.
Thus, the ALJ committed legal error when she rejected the examining source opinion of Dr. Halote by reasoning that his finding of disability was inconsistent with an "essentially benign" mental status examination and that Dr. Halote was "advocating" for plaintiff. These were not specific, legitimate reasons for rejecting such an opinion based on substantial evidence.
For the reasons described above, the ALJ's rejection of the opinions of Dr. Clement and Dr. Halote was not supported by substantial evidence and was legal error.
The choice whether to reverse and remand for further administrative proceedings, or to reverse and simply award benefits, is within the discretion of the court.
Although the ALJ provided legally insufficient reasons for rejecting the opinions of Drs. Clement and Halote, their opinions are somewhat ambiguous as to the specific nature, extent, and duration of plaintiff's work-related mental functional limitations. A remand for further administrative proceedings is required so that those outstanding issues may be resolved, and so that the ALJ also can re-evaluate the credibility of plaintiff's subjective symptom complaints in light of a proper assessment of the medical opinion evidence.
For the reasons stated above, the Commissioner's decision is not supported by substantial evidence and does not reflect application of the proper legal standards. Accordingly, the Commissioner's decision is