DAVID W. CHRISTEL, Magistrate Judge.
Plaintiff filed this action, pursuant to 42 U.S.C § 405(g), seeking judicial review of the denial of Plaintiff's application for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income Benefits ("SSI"). The parties have consented to proceed before a United States Magistrate Judge. See 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local Magistrate Judge Rule MJR 13. See also Consent to Proceed before a United States Magistrate Judge, Dkt. 7.
After reviewing the record, the Court concludes the Administrative Law Judge ("ALJ") erred by failing to properly evaluate the October, 2013 opinion of Plaintiff's treating physician. As a result, the ALJ also may have erred in evaluating Plaintiff's residual functional capacity and in evaluating Plaintiff's ability to engage in past relevant work at Step Four. Therefore, this matter is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings consistent with this Order.
On February 18, 2009, Plaintiff filed applications for DIB and SSI. See Dkt. 12, Administrative Record ("AR") 53. In her applications, Plaintiff alleged she became disabled on August 1, 2008, due to depression, sleep apnea, fibromyalgia, and neck and back pain. See AR 53, 66. Plaintiff's applications were denied upon initial administrative review on October 8, 2009, and on reconsideration on June 16, 2010. See AR 87-93, 97-101. A hearing was held before an ALJ on September 7, 2011, at which Plaintiff, represented by counsel, appeared and testified. See AR 576.
On October 14, 2011, the ALJ found Plaintiff was not disabled within the meaning of Sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. AR 28. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on November 16, 2012, making that decision the final decision of the Commissioner of Social Security (the "Commissioner"). See AR 6, 20 C.F.R. § 404.981, § 416.1481. On December 27, 2012, Plaintiff filed a complaint in this Court seeking judicial review. Ladwig v. Colvin, 2:12-cv-2260-BAT, at Dkt. 1 (W.D. Wa. 2013). On July 26, 2013, the Hon. Brian A. Tsuchida found the ALJ committed harmful error by failing to consider Plaintiff's mental conditions to be medically determinable impairments, and failing to find those same impairments "severe." AR 660-66. Judge Tsuchida entered an order reversing and remanding the case to "reevaluate Ms. Ladwig's mental impairments at step two, reassess Ms. Ladwig's credibility as to her mental limitations, and proceed to the remaining steps in the disability determination evaluation process as appropriate." Id.
A second hearing was held before the ALJ on November 5, 2014, and the ALJ issued a new decision on January 20, 2015, again finding Plaintiff was not disabled within the meaning of Sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. AR 659, 1465. Plaintiff filed this action on May 18, 2015.
Plaintiff argues the ALJ erred by: (1) giving little weight to the two opinions of Plaintiff's treating physician, Dr. Sharon Osea; and (2) failing to incorporate all of Plaintiff's credible limitations into her residual functional capacity, resulting in an erroneous finding at Step Four of the sequential evaluation. Dkt. 13, p. 1.
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits only if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such "`relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)).
Plaintiff argues the ALJ erred by giving little weight to the medical opinions of Plaintiff's treating physician, Dr. Sharon Osea.
The ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of either a treating or examining physician or psychologist. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). But, when a treating or examining physician's opinion is contradicted, that opinion can be rejected "for specific and legitimate reasons that are supported by substantial evidence in the record." Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can accomplish this by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes, 881 F.2d at 751).
Plaintiff contends the ALJ was required to offer clear and convincing reasons for rejecting Dr. Osea's opinions. See Dkt. 13, pp. 6, 8. But, Dr. Osea's opinions were contradicted by the opinions of Debra Stocker and Dr. Robert Hoskins. See AR 246-253, 291.
In addition, the ALJ must explain why the ALJ's own interpretations, rather than those of the doctors, are correct. Reddick, 157 F.3d at 725 (citing Embrey, 849 F.2d at 421-22). But, the Commissioner "may not reject `significant probative evidence' without explanation." Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (quoting Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981))). The "ALJ's written decision must state reasons for disregarding [such] evidence." Flores, 49 F.3d at 571.
Dr. Osea provided opinions concerning Plaintiff's alleged disability on two occasions. On October 1, 2013, Dr. Osea completed a form titled "medical statement regarding physical abilities and limitations." AR 1188. Five months later, on February 19, 2014, Dr. Osea completed a "physical function exam" form provided by the Washington State Department of Social and Health Services ("DSHS"). AR 1125. On both forms, Dr. Osea provided her opinions concerning Plaintiff's various exertional and postural limitations, as well as the expected impact Plaintiff's conditions would have on her ability to work.
On February 19, 2014, Dr. Osea opined Plaintiff would be unable to perform any of the following work-related activities due to her chronic neck and back pain and associated radiculopathy: sitting, standing, walking, lifting, carrying, handling, pushing, pulling, reaching, stooping, and crouching. AR 1125-27. Dr. Osea also opined these limitations would persist for at least twelve to twenty-four months. Id. The ALJ discounted Dr. Osea's February, 2014 opinion for the following reasons:
AR 654-55. Plaintiff argues none of these reasons are sufficient to reject the opinion of a treating physician; instead, Plaintiff contends the ALJ should have fully credited Dr. Osea's February, 2014 opinion. The Court disagrees.
The ALJ provided several specific and legitimate reasons for discounting Dr. Osea's February, 2014 opinion. For example, Plaintiff engaged in numerous physical activities in 2013 and 2014, including riding horses, walking at least one mile three times per day, attending nurse assistant classes (which included hands-on training), and driving, which are inconsistent with Dr. Osea's opinion that Plaintiff is unable to sit, stand, or walk. See AR 1178, 1492. Inconsistency with a claimant's activities is a specific and legitimate reason for discounting a medical opinion. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). Also, Plaintiff underwent a foraminotomy on her cervical spine shortly after Dr. Osea rendered her February, 2014 opinion. AR 1325. The improvements in her condition within several months of the surgery are documented in the record, and subsequent developments in a claimant's medical and treatment history can undermine a previous medical conclusion. AR 1426, 1481. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). See also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (claimant has burden of proving he or she suffers from medically determinable impairment that can be expected to last for a continuous period of not less than twelve months). Finally, the ALJ cites several records contemporaneous to Dr. Osea's opinions indicating Plaintiff was less limited than Dr. Osea opined. AR 724, 731, 1118, 1120-21, 1178-79, 1361. The consistency of a medical opinion with the whole record is an important factor in weighing a medical opinion's credibility, and the ALJ reasonably did so here. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4).
On October 1, 2013, Dr. Osea opined Plaintiff would be able to work no more than two hours per eight-hour work day, stand for no more than two hours per eight-hour work day, sit for no more than one hour per eight hour work day, lift or carry no more than five pounds on a frequent basis, reach over her right shoulder on a seldom basis and over her left shoulder on an occasional basis, and opined Plaintiff's impairments would cause her to miss more than three workdays per month. AR 1188-89. Importantly, unlike her February, 2014 opinion, Dr. Osea's October, 2013 opinion did not suggest Plaintiff would be categorically unable to perform most exertional activities.
The ALJ also gave Dr. Osea's October, 2013 opinion little weight, but only provided one reason for doing so: "it conflicts with the claimant's school attendance that she is currently being paid to attend. It is not realistic to believe claimant would be funded for training for a job that she is physically or mentally incapable of performing." AR 655. The Commissioner tacitly concedes this was not a specific and legitimate reason for discounting Dr. Osea's October, 2013 opinion. Dkt. 14, p. 5. Instead, the Commissioner argues any such error was harmless as Dr. Osea's two opinions were "substantially similar," and the ALJ's reasons for discrediting the February, 2014 opinion would apply equally well to the October, 2013 opinion. The Court disagrees.
Dr. Osea's October, 2013 opinion reflects fewer and less-severe limitations and restrictions than Dr. Osea opined to in her February, 2014 opinion. While Dr. Osea opined in February, 2014 that Plaintiff would be effectively unable to sit, stand, reach, handle, or lift for at least twelve to twenty-four months, Dr. Osea's October, 2013 opinion actually reflected Plaintiff would be able to perform those activities to varying degrees — though still at levels indicating Plaintiff was disabled. AR 1125-27, 1188-89. Dr. Osea's October, 2013 opinion, further, does not indicate whether and to what degree Plaintiff is limited in her ability to walk, stoop, and crouch, nor does it indicate the expected duration of any opined limitations. AR 1188-89. Given these differences, the evidence cited by the ALJ to discount Dr. Osea's February, 2014 opinion is not necessarily inconsistent with Dr. Osea's October, 2013 opinion that Plaintiff would have some partial, though extensive, exertional limitations. For example, Plaintiff's activities, such as horseback riding for ten minutes at a time, or walking several miles a day, are not necessarily inconsistent with Dr. Osea's October, 2013 opinion, as this opinion states Plaintiff would be able to sit for at least one hour in an eight-hour workday, and does not reference Plaintiff would be unable to walk. Further, while the record demonstrates Plaintiff's condition improved several months after surgery, Dr. Osea's October, 2013 opinion is not necessarily inconsistent with Plaintiff's post-surgical improvements. Thus, contrary to the Commissioner's argument, the ALJ's reasons for discrediting Dr. Osea's February, 2014 opinion do not apply equally well to Dr. Osea's October, 2013 opinion, and the ALJ's failure to articulate specific and legitimate reasons for discrediting Dr. Osea's October, 2013 opinion was harmful error requiring remand.
Plaintiff argues the ALJ erred at Step Four by finding Plaintiff was capable of performing past relevant work. Specifically, Plaintiff argues the ALJ's failure to properly credit Dr. Osea's opinions led the ALJ to find Plaintiff had the residual functional capacity to perform the full range of light work, subject to certain non-exertional, mental limitations. AR 646. Plaintiff argues this error, in turn, led to an improper hypothetical question to the vocational expert, leading the ALJ to conclude Plaintiff was capable of performing her past relevant work.
Plaintiff, not the Commissioner, has the burden at step four of the disability evaluation process to show that she is unable to return to her past relevant work. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). The hypothetical questions posed by the ALJ to the vocational expert at the hearing have no bearing on the ALJ's findings at Step Four, as the ALJ does not need to support a Step Four finding with vocational expert testimony. See Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996).
However, "although the burden of proof lies with the claimant at step four, the ALJ still has a duty to make the requisite factual findings to support his conclusion. . . . This is done by looking at the `residual functional capacity and the physical and mental demands' of the claimant's past relevant work." Pinto v. Massanari, 249 F.3d 850, 844-45 (9th Cir. 2001) (quoting 20 C.F.R. §§ 404.1520(e) and 416.920(e)) (citing 20 C.F.R. §§ 404.1571 and 416.971, 404.1574 and 416.974, 404.1565 and 416.965). In this case, the ALJ specifically found Plaintiff's past relevant work as an accounting clerk, chauffer, caterer director, and travel agent "does not require the performance of work-related activities precluded by the claimant's residual functional capacity." AR 659. But, as discussed above, the ALJ failed to properly evaluate Dr. Osea's October, 2013 opinion, and, as a result, may have also erred in determining Plaintiff's residual functional capacity. An ALJ's failure to properly evaluate all of the medical opinion evidence may result in a flawed residual functional capacity finding. See Social Security Ruling ("SSR") 96-8-p, 1996 WL 374184 at *2. As the ALJ's Step Four findings might be predicated on a flawed residual functional capacity finding, the ALJ will need to revisit the Step Four finding on remand.
Plaintiff argues Dr. Osea's opinions should be credited as true and the case remanded for the award of benefits, rather than for further proceedings.
Generally, when the Social Security Administration does not determine a claimant's application properly, "`the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'" Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit has established a "test for determining when [improperly rejected] evidence should be credited and an immediate award of benefits directed." Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). This test, often referred to as the "credit-as-true" rule, allows a court to direct an immediate award of benefits when:
Harman, 211 F.3d at 1178 (quoting Smolen, 80 F.3d at 1292). See also Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014), Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396 (9th Cir. 1988). Nonetheless, an ALJ's errors are relevant only to the extent they impact the underlying question of the Plaintiff's disability. Strauss v. Commissioner of the Social Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011). "A claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ's errors may be." Id. (citing Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 357 (7th Cir. 2005)). Therefore, even if the credit-as-true conditions are satisfied, a court should nonetheless remand the case if "an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled." Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) (citing Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2004)).
Here, outstanding issues must be resolved. Even if it were fully credited, Dr. Osea's October, 2013 opinion conflicts with the opinions of Ms. Stocker and Dr. Hoskins, which the ALJ had given significant weight. AR 246-253, 291. Therefore, the case should be remanded for additional proceedings, rather than for the calculation of benefits.
Based on the above stated reasons and the relevant record, the undersigned finds the ALJ erred by failing to properly evaluate Dr. Osea's October, 2013 opinion, failing to properly evaluate Plaintiff's residual functional capacity and Plaintiff's ability to engage in past relevant work at Step Four. Therefore, the court ORDERS this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the ALJ should reevaluate Dr. Osea's October, 2013 opinion and reweigh all of the medical opinion evidence, reevaluate Plaintiff's residual functional capacity, and proceed on to Step Four and/or Step Five of the sequential evaluation, as appropriate. On remand, the ALJ should also develop the record as needed. Judgment should be for PLAINTIFF and the case should be closed.
