HELEN GILLMOR, District Judge.
This case involves the appeal of the Social Security Administration Commissioner's denial of Disability Insurance Benefits and Supplemental Security Income benefits to Plaintiff Brian J. Nicholson.
On April 6, 2015, Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income pursuant to Titles II and XVI of the Social Security Act. Plaintiff claims that he has been disabled since March 25, 2015 on the basis of a hip fracture, osteoporosis, lumbar spine degenerative disease, a right femur fracture, and seizures.
The Social Security Administration denied Plaintiff's applications for Disability Insurance Benefits and Supplemental Security Income. Following an administrative hearing, the Administrative Law Judge ("ALJ") held that Plaintiff was not disabled for a period which lasted or was expected to last for a continuous period of one year at any time from March 25, 2015 through the date of the ALJ's decision of April 18, 2017. The Appeals Council denied Plaintiff's request for review and Plaintiff appealed to this Court.
The Court
Remand is necessary to allow the Administrative Law Judge to address the opinions of Plaintiff's treating and examining physicians.
On April 6, 2015, Plaintiff Brian J. Nicholson filed an application for Disability Insurance Benefits with the Social Security Administration. (Administrative Record ("AR") at pp. 18, 192-195, ECF No. 15). On the same date, Plaintiff Nicholson filed an application for Supplemental Security Income. (AR at pp. 18, 196-201).
On June 11, 2015, the Social Security Administration denied Plaintiff's initial applications for Disability Insurance Benefits and Supplemental Security Income. (AR at pp. 81-100, 127).
On September 8, 2015, the Social Security Administration denied Plaintiff's motion for reconsideration. (AR at pp. 101-26, 133). Following the denials, Plaintiff sought a hearing before an Administrative Law Judge ("ALJ").
On March 2, 2017, an ALJ conducted a hearing on Plaintiff's applications. (AR at pp. 39-80).
On April 18, 2017, the ALJ issued a written decision denying Plaintiff's applications. (AR at pp. 18-27). Plaintiff filed an appeal with the Appeals Council and submitted additional evidence on appeal. (Supplemental to the AR at pp. 648-57, ECF No. 20).
On August 18, 2017, the Appeals Council denied further review of Plaintiff's applications and rendered the ALJ's decision as the final administrative decision by the Commissioner of Social Security. (AR at pp. 1-4, ECF No. 15).
On October 11, 2017, Plaintiff sought judicial review of the Commissioner of Social Security's final decision to deny his applications for Disability Benefits and Supplemental Security Income in this Court pursuant to 42 U.S.C. § 405(g). (Complaint for Review of Social Security Disability and Supplemental Security Income Benefits Determinations, ECF No. 1).
On January 16, 2018, the Government filed the Administrative Record. (ECF No. 15).
On January 22, 2018, the Magistrate Judge issued a briefing schedule. (ECF No. 16).
On March 16, 2018, Plaintiff filed PLAINTIFF'S OPENING BRIEF. (ECF No. 17).
On April 26, 2018, the Parties filed a STIPULATION FOR EXTENSION OF TIME TO FILE THE SUPPLEMENTAL CERTIFIED ADMINISTRATIVE RECORD AND REVISED BRIEFING. (ECF No. 18).
On April 27, 2018, the Court issued a revised briefing schedule and a deadline for the Government to file the Supplemental Certified Administrative Record. (ECF No. 19).
On May 4, 2018, the Government filed the Supplemental Certified Administrative Record. (ECF No. 20).
On June 18, 2018, Plaintiff filed PLAINTIFF'S AMENDED OPENING BRIEF. (ECF No. 21).
On July 18, 2018, Defendant filed DEFENDANT'S ANSWERING BRIEF. (ECF No. 22).
On August 9, 2018, Plaintiff filed PLAINTIFF'S REPLY BRIEF. (ECF No. 23).
On August 16, 2018, the Government requested a continuance of the hearing. (ECF No. 24).
On the same date, the Court granted the Government's request to continue the hearing. (ECF No. 25).
On October 29, 2018, the Court held a hearing on Plaintiff's appeal of the decision of the Social Security Administration Commissioner.
Plaintiff is a 46 year old male. (Administrative Record ("AR") at p. 41, ECF No. 15). Plaintiff suffers from osteoporosis, a seizure disorder, lumbar degenerative disc disease, and hip pain due to a previously broken right femur that rendered his right leg shorter than his left. (
From 2002 until March 2015, Plaintiff worked full-time in the restaurant industry as a server, manager, and bartender. (
On March 24, 2015, Plaintiff had a grand mal seizure, causing him to fall and break his right femur. (
On April 6, 2015, Plaintiff filed applications for Disability Insurance benefits and for Supplemental Security Income, alleging that he has been disabled following the March 24, 2015 grand mal seizure. (
Plaintiff's initial applications were denied. Plaintiff sought reconsideration which was also denied by the Social Security Administration. Following the denial of Plaintiff's request for reconsideration, a hearing was held before an Administrative Law Judge on March 2, 2017.
On April 18, 2017, the Administrative Law Judge denied Plaintiff's applications for Disability Insurance and Supplemental Security Income benefits. (
Plaintiff sought review of the Administrative Law Judge's decision with the Appeals Council and submitted additional medical evidence. (Supplemental Administrative Record at pp. 648-57, ECF No. 20). The Appeals Council denied Plaintiff's request for review and rendered a final administrative decision by the Commissioner of Social Security. (AR at pp. 1-4, ECF No. 15).
A claimant is disabled under the Social Security Act if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A);
A decision by the Commissioner of Social Security must be affirmed by the District Court if it is based on proper legal standards and the findings are supported by substantial evidence on the record as a whole.
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
From January 2002 until March 2007, Plaintiff worked as the assistant food and beverage director at Renaissance Hotels on the mainland. (AR at pp. 48, 221, ECF No. 15). Plaintiff's duties included staff development, inventory, and ordering the beverages and food for the hotel chain. (
From March 2008 until November 2014, Plaintiff worked full-time as a server in fine dining restaurants in California. (
On March 24, 2015, Plaintiff suffered a grand mal seizure. (AR at pp. 49, 309-19, ECF No. 20). Plaintiff had previously suffered one seizure when he was 19 years old, but he had not had a seizure in 25 years. (
Two days after the grand mal seizure, on March 26, 2015, Plaintiff underwent surgery to insert a metal rod in his right femur, performed by orthopaedic surgeon Dr. Douglas Ching, M.D. (
On April 10, 2015 and May 8, 2015, Plaintiff returned to the orthopaedic surgeon, Dr. Douglas Ching, M.D., following his femur surgery. (
Dr. Ching issued a prescription for Plaintiff to attend physical therapy for 2-3 days a week for six weeks beginning on May 18, 2015. (
The right femur fracture did not heal well due to Plaintiff suffering from osteoporosis. (
The record reflects that Dr. Anne Biedel, M.D., Plaintiff's primary care physician, examined Plaintiff more than 25 times over the period of June 2015 to September 2016.
On June 9, 2015, Plaintiff was examined by Dr. Biedel. (
On June 23, 2015, Plaintiff was again examined by Dr. Biedel. (
Dr. Biedel issued a prescription for Plaintiff to attend further physical therapy. (
On July 5, 2015, Plaintiff was at the beach when "he got slammed while trying to come out of the water, he hit his knee into the bottom of the sand and had a hard time getting out." (
Plaintiff was examined again by Dr. Biedel three days later on July 9, 2015. (
Dr. Biedel continued to regularly examine Plaintiff and saw him for appointments on August 10, September 22, October 20, November 10, December 3, December 8, and December 28, 2015. (
Dr. Biedel referred Plaintiff to specialists in order to assess the severity of his infirmities. Plaintiff was referred to Neurosurgeon Dr. Thomas Rogers, M.D., Endocrinologist Dr. Frank Singer, M.D., and Neurologist Dr. George E. Powell, M.D. Each of the physicians examined and treated Plaintiff.
On January 24, 2016, Plaintiff fell in his bathtub and was injured for a third time. (
On January 28, 2016, Plaintiff was referred for a bone density and vertebral assessment due to his reports of pain in his back after the fall. Plaintiff was diagnosed with osteoporosis. (
On February 2, 2016, Plaintiff continued to have pain in his head and back as a result of the fall on January 24, 2016. Imaging of Plaintiff's skull was conducted. (
On February 24, 2016, Plaintiff was referred by Dr. Biedel for a spine x-ray. (
On March 8, 2016, Plaintiff was referred by Dr. Biedel for magnetic resonance imagining (MRI) of Plaintiff's spine. (
Plaintiff continued to attend his appointments with Dr. Biedel and complained that despite attending physical therapy he was suffering from pain in his hips, knee, and his back. (
Dr. Biedel issued further prescriptions for physical therapy on September 8, 2015, December 17, 2015, February 24, 2016, and April 6, 2016. (
On May 17, 2016, Plaintiff had a second grand mal seizure. (
Plaintiff continued to have appointments with Dr. Biedel and complained of pain in his back, hips, and leg despite medications. (
On November 14, 2016, Dr. Biedel wrote a letter for Plaintiff's Social Security proceedings, explaining that he was disabled as a result of an epileptic seizure disorder. (
On May 26, 2017, following Plaintiff's hearing before the ALJ, Dr. Biedel wrote a letter to the Social Security Administration Appeals Council setting forth her treatment history of the Plaintiff. She explained that after two years of treatment following his fractured femur in March 2015, Plaintiff continued to suffer from multiple physical problems including a seizure disorder, severe osteoporosis with current pathological fractures, and compression fractures in his back. (Supplemental AR at p. 652). Dr. Biedel described Plaintiff's condition as follows:
Plaintiff was examined three times by Dr. Kenneth Kau, M.D., of the State of Hawaii Department of Human Services to evaluate Plaintiff's employability and eligibility for State benefits. (
On July 20, 2016, Dr. Kau examined Plaintiff to evaluate Plaintiff's employability. (AR at pp. 562-64, ECF No. 15). Dr. Kau reviewed Plaintiff's prior medical records and conducted his own examination. (
Dr. Kau conducted a functional assessment of Plaintiff and concluded that Plaintiff had been unable to work since at least March 2016. Dr. Kau specifically found that Plaintiff could not lift or carry any weight. (
On October 26, 2016, Dr. Kau conducted a physical examination of Plaintiff a second time. (
Dr. Kau's findings concurred with the opinions of Plaintiff's neurologist and primary physician, determining that Plaintiff remained unable to work. (
On January 25, 2017, Dr. Kau conducted a physical examination of Plaintiff for a third time. (
The three examinations of Dr. Kau determined that Plaintiff was unable to work from at least March 2016, when his vertebral compressions were discovered, until at least May 25, 2017. (
The Social Security Administration has implemented regulations establishing when a person is disabled so as to be entitled to benefits under the Social Security Act, 42 U.S.C. §§ 423, 1382c. The regulations establish a five-step sequential evaluation process to determine if a claimant is disabled. The Commissioner of the Social Security Administration reviews a disability claim for Supplemental Security Income by evaluating the following:
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five.
At Plaintiff's March 2, 2017 administrative hearing, the Administrative Law Judge ("ALJ") for the Social Security Administration reviewed Plaintiff's claim by engaging in the five-step sequential evaluation.
The Parties agree there were no errors in the first three steps of the administrative review process.
The Parties disagree as to the ALJ's evaluations at steps four and five in the administrative review process.
Plaintiff argues that the ALJ did not properly consider the opinions of Plaintiff's treating and examining physicians but instead credited one non-examining physician.
Remand is required for the ALJ to properly evaluate the opinions of primary physician Dr. Biedel, Neurosurgeon Dr. Rogers, Neurologist Dr. Powell, Endocrinologist Dr. Singer, and the Hawaii State examining physician Dr. Kau.
A treating physician's opinion is entitled to the greatest weight because the treating physician is hired to examine and treat the patient over an extended period of time and has the best opportunity to assess the claimant.
An ALJ must state clear and convincing reasons that are supported by substantial evidence in order to reject the opinion of the treating physician.
Plaintiff's primary care treating physician, Dr. Anne Biedel, M.D., examined Plaintiff on more than 25 different occasions for the two years following his grand mal seizure in March 2015. (AR at pp. 217-379, ECF No. 17). Plaintiff was diagnosed with a seizure disorder, osteoporosis, and lumbar degenerative disc disorder with fractures.
Plaintiff suffered four separate injuries following his initial grand mal seizure on March 24, 2015.
First, Plaintiff's March 24, 2015 grand mal seizure caused him to break his right femur. (
Second, on July 5, 2015, Plaintiff fell at the beach and injured his knee and fractured his toes. (
Third, on January 24, 2016, Plaintiff fell in the bathtub, and hit his head on the shower and edge of the tub, causing head and face lacerations. (
Fourth, Plaintiff suffered a second grand mal seizure on May 17, 2016. (
Dr. Biedel examined Plaintiff throughout the progression of his infirmities. She referred Plaintiff to numerous specialists and prescribed Plaintiff medications and physical therapy for his ailments. Plaintiff consistently attended physical therapy and tried various medications but still had pain in his hips, leg, and back.
The records from Dr. Biedel indicate Plaintiff suffered numerous side-effects from medications for pain and seizures including vomitting and nausea. Plaintiff's frequent complaints of pain and limitations in his ambulation are noted throughout Dr. Biedel's extensive treatment history of Plaintiff.
Despite the extensive treatment record, the ALJ did not discuss the lengthy treatment record in the written decision. The ALJ cited certain medical records but did not address the numerous medical opinions of Dr. Biedel except for the letter she wrote on November 14, 2016. The November 14, 2016 letter from Dr. Biedel stated that she believed Plaintiff was "disabled." (AR at p. 24, ECF No. 15). The ALJ found as follows:
The ALJ is correct that the ultimate opinion on disability is reserved for the agency; however, the ALJ is required to develop the record and evaluate the medical opinions provided.
The ALJ is required to consider factors such as the length of the treating relationship, the frequency of examination, the nature and extent of the treatment relationship and the supportability of the treating physician's opinion in evaluating its weight.
Contrary to the ALJ's opinion, there are significant objective medical tests in the record, including x-rays, MRIs and neurological findings by Plaintiff's treating physicians. There are detailed medical records from Dr. Biedel and the records from Dr. Ching, Dr. Rogers, and Dr. Powell.
Dr. Biedel found that the medical data and physical examinations indicated that Plaintiff was unable to stand for long periods of time, is required to sit down often, and could not work due to pain in his low back and hips. (AR at p. 447, ECF No. 15). The ALJ did not address the specific findings in Dr. Biedel's treating records, but rather, he rejected her opinion in its entirety in favor of the opinion of non-examining physician, Dr. Harold Milstein, who never examined or treated the Plaintiff.
In some instances, a non-examining physician may review the claimant's medical records to assist the ALJ in his or her assessment of the claimant's residual functional capacity. An ALJ may not rely on the opinion of a non-examining physician alone to reject the opinion of the treating physician as to the severity of the claimant's impairments.
Dr. Milstein's opinion was not based on his own clinical findings but on a review of
In addition, the ALJ relied on Dr. Milstein's opinion to determine Plaintiff's limitations. The ALJ did not incorporate Plaintiff's pain into the limitations. Dr. Milstein did not consider the level of pain Plaintiff would experience when testifying as to Plaintiff's ability to perform work. (
Courts in the Ninth Circuit Court of Appeals jurisdiction have repeatedly found that an ALJ may not reject the opinion of a treating physician based on his or her own interpretation of raw medical data.
Here, there were medical opinions based on objective data set forth by Plaintiff's treating and examining physicians. The ALJ erred when he rejected their opinions in favor of his own interpretation of the medical evidence.
The ALJ rejected Plaintiff's testimony regarding his symptoms including his level of pain without providing specific, clear and convincing reasons for doing so.
For example, the ALJ found that Plaintiff testified that he could perform daily activities. The ALJ reviewed Plaintiff's initial application and found that Plaintiff initially "stated that he could make simple meals and shop in stores (which is not consistent with his testimony. . . ." (AR at p. 22). A review of the record, however, demonstrates that Plaintiff's statement on his initial application is entirely consistent with his testimony. In his initial application, Plaintiff states that he goes to stores but requires friends to drive him. (
There was no inconsistency between Plaintiff's testimony about his shopping activities and the statement on his initial applications that he goes to the grocery store with assistance. The ALJ erred in discrediting Plaintiff's testimony on this basis.
The ALJ claimed that Plaintiff did not regularly take medication. The record demonstrates that Plaintiff took various types of pain, osteoporosis, and seizure medication but had difficulty with side-effects. Numerous physicians found that Plaintiff suffered gastrointestinal issues from medications as mild as Advil and Tylenol.
The ALJ is not allowed to make his own assessment as to the efficacy of the Plaintiff's medications in order to reject the medical findings of the treating physicians.
Dr. Biedel provided further medical analysis to the Appeals Council that directly contradicted the ALJ's findings.
The Government argues that the Court should disregard this part of the record. The Government misunderstands the caselaw. The Ninth Circuit Court of Appeals in
The evidence submitted to the Appeals Council includes a letter from Dr. Biedel on May 26, 2017. (Supplemental AR at p. 652, ECF No. 20). The letter is particularly relevant because it set forth Dr. Biedel's extensive treatment of the Plaintiff and provides details into Plaintiff's limitations that directly contradict the ALJ's residual functional capacity assessment. (Supplemental AR at p. 652, ECF No. 20).
The letter states that Plaintiff continued to suffer for two years after his grand mal seizure and explains that his infirmities make it so that:
The agency was required to address the findings of Plaintiff's treating physician and it failed to do so.
On remand, the ALJ is required to properly evaluate the opinion of Dr. Biedel and Plaintiff's testimony as to his symptoms and limitations.
Dr. Kenneth Kau, M.D., from the State of Hawaii Department of Human Services, conducted three separate physical examinations of Plaintiff in order to determine whether Plaintiff was eligible for State benefits due to his disability.
In July 2016, October 2016, and January 2017, Dr. Kau found Plaintiff was incapacitated and unable to work.
The ALJ rejected Dr. Kau's opinion without clear and convincing evidence.
The ALJ did not name Dr. Kau in the written decision. Instead, the ALJ referred to multiple physicians from the State of Hawaii Department of Human Services having examined Plaintiff. The ALJ stated as follows:
The ALJ made a factual error in reviewing Plaintiff's medical records. Only Dr. Kau from the State of Hawaii Department of Human Services examined Plaintiff. There were not brief examinations by three separate doctors as stated by the ALJ.
Dr. Kau found that Plaintiff had been unable to work from at least March 2016 when Plaintiff underwent imaging that revealed he had suffered multiple spinal fractures. (
Dr. Kau evaluated Plaintiff pursuant to Hawaii Administrative Rule § 17-658-5(a) and found Plaintiff suffered from an impairment "which has lasted or may be expected to last for a continuous period of not less than twelve months."
The ALJ erred in finding that Dr. Kau did not find that Plaintiff's incapacitation lasted or was expected to last more than twelve months. Dr. Kau applied Hawaii Administrative Rule § 17-658-5(a) and found that Plaintiff had met the 12-month duration requirement. Dr. Kau found that Plaintiff had been unable to work from at least March 2016 (when Plaintiff suffered multiple spinal fractures) through at least May 2017. (
Dr. Kau conducted physical examinations of Plaintiff on three occasions: July 27, 2016, October 26, 2016, and January 25, 2017. The first physical examination took place more than 16 months after Plaintiff's alleged onset date of disability of March 25, 2015, the day after Plaintiff suffered a grand mal seizure causing him to break his right femur. Plaintiff's right leg was shortened as a result of the surgery. Plaintiff began to experience hip and back pain after suffering numerous falls. Plaintiff was later diagnosed with severe osteoporosis and multiple lumbar fractures in his vertebrae.
In March 2016, Plaintiff suffered from a burst fracture and a compression fracture in his spine. (
Dr. Kau found that Plaintiff remained incapacitated from March 2016 until at least May 2017. At each of Dr. Kau's evaluations in 2016 and 2017, Dr. Kau found that Plaintiff was unable to work. Dr. Kau required Plaintiff to return for further physical examinations and Plaintiff complied. Dr. Kau found that Plaintiff was improving with physical therapy but remained incapacitated.
The ALJ did not properly review Dr. Kau's findings. Instead, the ALJ found that the duration requirement that Plaintiff be disabled for a minimum of twelve months was not satisfied by Dr. Kau's findings. The ALJ's finding is belied by the record. The ALJ acknowledged that Plaintiff was initially incapacitated following his seizure in March 2015. (AR at p. 23, ECF No. 15). The ALJ did not provide an assessment of when he believed that Plaintiff was able to return to work.
Plaintiff suffered new injuries in July 2015 and January 2016. The treating and examining physicians, including Dr. Kau, all found that Plaintiff remained incapacitated until at least May 2017.
Dr. Kau first examined Plaintiff on July 27, 2016, more than a year after his femur surgery, and found that Plaintiff remained disabled. Dr. Kau found that Plaintiff continued to be disabled after his first examination. The record shows that Dr. Kau found Plaintiff was disabled until at least May 2017, more than two years after Plaintiff suffered his grand mal seizure and more than a year after his subsequent spinal fractures. (
Importantly, Dr. Kau was required under Hawaii State law to find Plaintiff's disability lasted or would last a minimum of 12 months in order for him to find Plaintiff unable to work. Haw. Admin. Rules § 17-658-5(a). The ALJ did not address the Hawaii State regulation.
The Government argues that Dr. Kau did not find Plaintiff was "permanently disabled" and did not refer him directly for SSI benefits by checking a box on the form filled out by Dr. Kau. The ALJ made no findings as to Dr. Kau's completion of the forms. The ALJ made factual errors and stated that Plaintiff was evaluated by different physicians and never even named Dr. Kau in his decision. The Court cannot assess the ALJ's reasoning with respect to Dr. Kau's completion of the forms when the record does not provide any findings by the ALJ on the issue.
The record is clear that Dr. Kau's examinations and findings as to Plaintiff's limitations directly contradict the ALJ's residual functional capacity assessment. The ALJ did not provide clear and convincing evidence for rejecting the examining physician's opinion.
The ALJ is required to develop the record and evaluate the medical opinions provided.
On March 17, 2016, Plaintiff was examined by neurosurgeon Dr. Thomas Rogers, M.D. (AR at pp. 384-86, ECF No. 15). Dr. Rogers found Plaintiff had fractures in his vertebrae causing back pain and that his "pain in the back is worse with sitting or standing." (
At a follow-up appointment on May 12, 2016, Dr. Rogers concluded that Plaintiff continued to have pain. (
The ALJ never addressed Dr. Rogers' findings.
On April 14, 2016, Plaintiff was examined by endocrinologist Dr. Frank Singer, M.D. (
Dr. Singer found that some osteoporosis medications proved ineffective with Plaintiff and others upset Plaintiff's gastrointestinal system but he prescribed Plaintiff Fosamax to try for one year. (
The ALJ did not address Dr. Singer's findings.
On June 13, 2016, Plaintiff was evaluated by neurologist Dr. George E. Powell, M.D. Dr. Powell found that Plaintiff had been diagnosed with acute osteoporosis and had difficulty tolerating medications. (
In follow-up appointments in 2017, Dr. Powell prescribed medications for Plaintiff. (
The ALJ also did not address Dr. Powell's opinion. As a whole, the ALJ did not provide a specific assessment of either Dr. Rogers, Dr. Singer, or Dr. Powell's medical opinions in the record. The Ninth Circuit Court of Appeals held in Marsh v.
Remand is required to allow the ALJ to properly evaluate the medical opinions of Dr. Biedel, Dr. Kau, Dr. Rogers, Dr. Singer, and Dr. Powell. 20 C.F.R. §§ 404.1527(c)(1)-(6) 416.927(c)(1)-(6);
The Commissioner of Social Security Administration's decision is
IT IS SO ORDERED.
