Howard v. Commissioner of Social Security
Filing
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ORDER re 1 Social Security Complaint filed by Rena R. Howard signed by Magistrate Judge Gary S. Austin on 6/16/2011. CASE CLOSED.(Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RENA R. HOWARD,
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Plaintiff,
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v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
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Defendant.
) 1:10-cv-00821 GSA
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) ORDER REGARDING PLAINTIFF’S
) SOCIAL SECURITY COMPLAINT
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BACKGROUND
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Plaintiff Rena R. Howard (“Plaintiff”) seeks judicial review of a final decision of the
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Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for
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disability and supplemental security income benefits pursuant to Titles II and XVI of the Social
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Security Act. The matter is currently before the Court on the parties’ briefs, which were
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submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate
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Judge.1
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The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 9 & 10.
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FACTS AND PRIOR PROCEEDINGS2
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Plaintiff applied for disability insurance and supplemental security income benefits in
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November 2005. See AR 80-82. The applications were denied initially and on reconsideration.
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AR 39-54. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), and a
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hearing was held before ALJ Bernard A. Trembly on April 15, 2008. AR 20-34, 55. ALJ
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Trembly issued a decision denying benefits on May 17, 2008. AR 10-19. Thereafter, Plaintiff
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timely appealed the decision. AR 8-9. The Appeals Council denied review on March 31, 2010.
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AR 1-3.
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Hearing Testimony
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ALJ Trembly held a hearing on April 15, 2008, in Bakersfield, California. Plaintiff was
present and testified; she was represented by attorney Erica Drake. AR 20-34.
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Following graduation from high school, Plaintiff attended about a year of college. AR
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26. She was forty-five years old at the time of the hearing. AR 23, 25. Prior to her disability,
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Plaintiff worked in customer service and collections. Plaintiff did work for a period following
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her initial application for benefits; however, in 2007, following a hospitalization, she was no
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longer able to work as her condition had worsened. AR 23-25.
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In early 2007, Plaintiff was diagnosed with lupus. AR 26. She is “really fatigued all the
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time” and suffers from shortness of breath. AR 26. She characterized her illness as “sporadic,”
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indicating she would be “okay one day” and “can’t even get out of the bed” the next. AR 26-27.
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Plaintiff suffers from joint pain from the waist down. Her legs hurt all the time and her ankles
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and feet swell. AR 27-28. In 2001 and 2003, Plaintiff was diagnosed with sarcoidosis and
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diabetes. AR 29-30. She continues to be treated for all of these conditions. AR 29-30.
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Plaintiff takes a number of pain medications, and also takes medications to treat blood
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pressure, thyroid disease, and diabetes. AR 27. She indicated that the steroids she was
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prescribed produced night sweats. AR 30.
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References to the Administrative Record will be designated as “AR,” followed by the appropriate page
number.
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Before January 2007, Plaintiff was working as a clerk at a grocery store, stocking shelves
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and collecting carts from the parking lot. However, she can no longer work due to shortness of
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breath and the need to rest. AR 28. Also, as a result of the lupus diagnosis and diabetes, she
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cannot be in direct sunlight. AR 28. Prior to the aforementioned position, Plaintiff also held
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other positions as a clerk or merchandiser. AR 28-29.
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With regard to a position that would allow her to sit behind a desk the majority of the day,
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Plaintiff explained that she cannot sit for long because her “legs go numb” (AR 29), and
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therefore she could not perform sedentary work. She can sit for about an hour before needing to
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get up and walk or move around. AR 30. Plaintiff can walk for an hour and a half or two hours
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before becoming short of breath. AR 31. Morever, if she lies down too long, she is in pain and
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if she sits too long she is in pain. AR 31. A sedentary job would cause pain in her legs. AR 31.
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Plaintiff also has difficulty concentrating. The pain affects her concentration. AR 31.
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Plaintiff indicated that she takes a nap every day for about an hour. AR 31. While she suffers
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from depression, Plaintiff is not currently taking any medication for the condition. AR 31-32.
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Additionally, Plaintiff indicated that her vision has worsened since 2007 as a result of the lupus.
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More particularly, she cannot see close up. AR 32-33. She does not drive; her mother drove her
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to the hearing. AR 28, 32-33.
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For pleasure, Plaintiff spends time with her mother and likes to go to the movies. AR 32.
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She can no longer go walking with her girlfriend. AR 32. On a bad day, she will relax by
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watching television, reading a book or looking at magazines. AR 32.
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Medical Record
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The entire medical record was reviewed by the Court (AR 160-392), however, only those
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medical records relevant to the issues on appeal will be addressed below as needed in this
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opinion.
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ALJ Trembly’s Findings
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The ALJ determined that Plaintiff met the insured status requirements through March 31,
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2009. AR 15. Next, the ALJ determined that Plaintiff had not engaged in substantial gainful
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activity since January 1, 2000, the alleged onset date, and that she had the severe impairments of
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sarcoidosis, lupus, and left carpal tunnel syndrome. AR 15. Nonetheless, the ALJ determined
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that Plaintiff did not have an impairment or combination of impairments that met or exceeded
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one of the listing impairments. AR 15-16.
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Based on his review of the medical evidence, the ALJ determined that Plaintiff had the
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RFC to perform the full range of sedentary work. AR 16-18. The ALJ found that Plaintiff’s
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RFC prevents her from performing her past relevant work. AR 18. However, considering
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Plaintiff’s age, education, work experience and RFC, there were a significant number of jobs in
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the national economy that Plaintiff could perform. AR 18-19. Accordingly, the ALJ determined
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that Plaintiff was not disabled. AR 19.
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SCOPE OF REVIEW
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Congress has provided a limited scope of judicial review of the Commissioner’s decision
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to deny benefits under the Act. In reviewing findings of fact with respect to such determinations,
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the Court must determine whether the decision of the Commissioner is supported by substantial
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evidence. 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,”
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Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v.
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Weinberger, 514 F.2d 1112, 1119, n.10 (9th Cir. 1975). It is “such relevant evidence as a
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reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at
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401. The record as a whole must be considered, weighing both the evidence that supports and
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the evidence that detracts from the Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993,
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995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must
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apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
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This Court must uphold the Commissioner’s determination that the claimant is not disabled if the
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Secretary applied the proper legal standards, and if the Commissioner’s findings are supported by
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substantial evidence. See Sanchez v. Sec’y of Health and Human Serv., 812 F.2d 509, 510 (9th
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Cir. 1987).
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REVIEW
In order to qualify for benefits, a claimant must establish that she is unable to engage in
substantial gainful activity due to a medically determinable physical or mental impairment which
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has lasted or can be expected to last for a continuous period of not less than twelve months. 42
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U.S.C. § 1382c (a)(3)(A). A claimant must show that she has a physical or mental impairment of
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such severity that she is not only unable to do her previous work, but cannot, considering her age,
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education, and work experience, engage in any other kind of substantial gainful work which
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exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989).
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The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th
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Cir. 1990).
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In an effort to achieve uniformity of decisions, the Commissioner has promulgated
regulations which contain, inter alia, a five-step sequential disability evaluation process. 20
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C.F.R. §§ 404.1520 (a)-(f), 416.920 (a)-(f) (1994). Following the ALJ’s determination, Plaintiff
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argues that the ALJ impermissibly dismissed her treating physician’s opinion. (Doc. 12 at 9-17.)
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DISCUSSION
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The ALJ’s Consideration of the Medical Opinion Evidence
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Plaintiff argues that the ALJ erroneously rejected the opinion of her treating physician,
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Dr. Berry. More specifically, she asserts the ALJ failed to provide valid reasons for rejecting the
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expert’s opinion. (Doc. 12 at 9-17; see also Doc. 15.)
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Applicable Legal Standards
Cases in this circuit distinguish among the opinions of three types of physicians: (1) those
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who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant
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(examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining
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physicians). As a general rule, more weight should be given to the opinion of a treating source
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than to the opinion of doctors who do not treat the claimant. Winans v. Bowen, 853 F.2d 643,
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647 (9th Cir. 1987). At least where the treating doctor’s opinion is not contradicted by another
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doctor, it may be rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d
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1391, 1396 (9th Cir. 1991). Even if the treating doctor’s opinion is contradicted by another
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doctor, the Commissioner may not reject this opinion without providing “specific and legitimate
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reasons” supported by substantial evidence in the record for so doing. Murray v. Heckler, 722
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F.2d 499, 502 (9th Cir. 1983).
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The opinion of an examining physician is, in turn, entitled to greater weight than the
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opinion of a nonexamining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990);
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Gallant v. Heckler, 753 F.2d 1450 (9th Cir. 1984). As is the case with the opinion of a treating
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physician, the Commissioner must provide “clear and convincing” reasons for rejecting the
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uncontradicted opinion of an examining physician. Pitzer, 908 F.2d at 506. And like the opinion
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of a treating doctor, the opinion of an examining doctor, even if contradicted by another doctor,
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can only be rejected for specific and legitimate reasons that are supported by substantial evidence
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in the record. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995).
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The opinion of a nonexamining physician cannot, by itself, constitute substantial evidence
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that justifies the rejection of the opinion of either an examining physician or a treating physician.
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Pitzer v. Sullivan, 908 F.2d at 506 n.4; Gallant v. Sullivan, 753 F.2d at 1456. In some cases,
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however, the ALJ can reject the opinion of a treating or examining physician, based in part on the
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testimony of a nonexamining medical advisor. E.g., Magallanes v. Bowen, 881 F.2d 747, 751-55
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(9th Cir. 1989); Andrews v. Shalala, 53 F.3d at 1043; Roberts v. Shalala, 66 F.3d 179 (9th Cir.
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1995). For example, in Magallanes, the Ninth Circuit explained that in rejecting the opinion of a
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treating physician, “the ALJ did not rely on [the nonexamining physician's] testimony alone to
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reject the opinions of Magallanes's treating physicians . . ..” Magallanes, 881 F.2d at 752.
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Rather, there was an abundance of evidence that supported the ALJ’s decision: the ALJ also
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relied on laboratory test results, on contrary reports from examining physicians, and on testimony
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from the claimant that conflicted with her treating physician's opinion. Id. at 751-52.
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2.
Analysis
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Here, ALJ Trembly found as follows:
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As for the opinion[] of Dr. Berry that the claimant is totally disabled[, that
opinion] concerns issues specifically reserved to the Commissioner. The
undersigned gives little weight to the opinion of Dr. Berry, and gives greater
weight to the opinions of the State Agency consultant and consultative examiner
who are familiar with the Commissioner’s regulations for evaluating disability.
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AR 18. The ALJ is correct that a determination of a claimant’s ultimate disability is reserved to
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the Commissioner, and that a physician's opinion on the matter is not entitled to special
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significance. 20 C.F.R. § 404.1527(e). However, a treating physician’s medical opinions are
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generally given more weight. 20 C.F.R. § 404.1527(d)(2). Medical opinions “reflect judgments
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about the nature and severity of [a claimant's] impairment(s), including [a claimant's] symptoms,
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diagnosis and prognosis, what [a claimant] can still do despite impairment(s), and [a claimant's]
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physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2).
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Here, the ALJ specifically refers only to a letter written by Dr. Berry on November 12,
2007, in rejecting the physician’s opinion. That letter states, in pertinent part:
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To Whom It May Concern:
Rena Howard is a patient of mine. She has a severe lupus-like condition
with vasculitis with severe pain and fatigue. For this reason, she is totally
disabled.
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AR 327, 355. Earlier in his findings, the ALJ made a passing reference to Dr. Berry’s March 6,
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2007, treatment notes, but fails to otherwise address the abnormal test results contained in Dr.
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Berry’s treatment records. Cf. AR 17 to AR 338-352; see also AR 358-359, 361, 363-365, 36812
369, 371-375, 377-378, 380, 385, 388.
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Moreover, the Court notes that the reports and findings of the examining physician and
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state agency consultants occurred in 2006, whereas Dr. Berry resumed treatment of Plaintiff in
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March 2007. Plaintiff’s hospitalization in February 2007 was also subsequent to the 2006 reports
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and findings of the examining and state agency physicians. Cf. AR 214-223, 231-233 to AR 32417
326.3
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“[T]o reject the opinion of a treating physician ‘in favor of a conflicting opinion of an
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examining physician[,]’ an ALJ still must ‘make [ ] findings setting forth specific, legitimate
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reasons for doing so that are based on substantial evidence in the record.’” Valentine v. Comm’r
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Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (quoting Thomas v. Barnhart, 278 F.3d 947,
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957 (9th Cir. 2002)). Here, ALJ Trembly failed to set forth specific, legitimate reasons for
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rejecting Dr. Berry’s opinion based upon substantial evidence in the record. The fact that the
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ultimate determination regarding disability is reserved to the Commissioner is not substantial
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evidence in the record. Moreover, such a conclusory statement is insufficient. See Tackett v.
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Plaintiff’s counsel indicated at the administrative hearing that Plaintiff could no longer work following the
2007 hospitalization as her conditions (lupus, anemia, diabetes, hypertension and thyroid disorder) had worsened.
AR 25.
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Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999) (“The ALJ must set out in the record his reasoning
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and the evidentiary support for his interpretation of the medical evidence”); Regennitter v.
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Comm'r of the Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999) (“[C]onclusory reasons will
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not justify an ALJ's rejection of a medical opinion”); Burger v. Astrue, 536 F.Supp.2d 1182,
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1187 (C.D. Cal. 2008) (“[C]onclusory statements are not a specific and legitimate reason for
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rejecting [a treating physician's] opinions”).
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The Commissioner urges this Court to consider its opinion that “Dr. Berry’s statement
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merely repeated Plaintiff’s allegations regarding her symptoms,” that Plaintiff’s treatment was
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conservative and her symptoms were controlled by medications, and that Dr. Berry’s opinion was
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“inconsistent with his treatment notes.” (Doc. 14 at 7-8.) However, the ALJ did not rely on
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these factors as part of his analysis and the Court is not permitted to make ad hoc rationalizations
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for the ALJ. Barbato v. Commissioner of Social Sec. Admin., 923 F.Supp. 1273, 1276, n.2 (C.D.
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Cal. 1996). Further, the Court may not speculate as to the ALJ’s findings or the basis of the
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ALJ’s unexplained conclusions. Lewin v. Schweiker, 654 F.2d 631, 634-35 (9th Cir. 1981); Stout
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v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006) (a reviewing court cannot affirm an ALJ’s
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decision denying benefits on a ground not invoked by the Commissioner) (citing Pinto v.
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Massanari, 249 F.3d 840, 847 (9th Cir. 2001)).
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Finally, as noted by Plaintiff, Dr. Berry is a rheumatologist, and hence a specialist. Title
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Specialization. We generally give more weight to the opinion of a specialist about
medical issues related to his or her area of specialty than to the opinion of a source
who is not a specialist.
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See also 20 C.F.R. § 416.927(d)(5) (same). There is no evidence that the ALJ even considered
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the fact Dr. Berry is a specialist.
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In sum, ALJ Trembly’s conclusory statement that Dr. Berry’s opinion “concerns issues
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specifically reserved to the Commissioner” (AR 18) does not amount to the specific and
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legitimate reasons required in order to reject a treating physician’s opinion. Moreover, this Court
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will not engage in ad hoc reasoning. For those reasons, this matter must be remanded for further
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proceedings.
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CONCLUSION
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Based on the foregoing, the Court finds that the ALJ’s decision is not supported by
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substantial evidence and is therefore REVERSED and the case is REMANDED to the ALJ for
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further proceedings consistent with this opinion. The Clerk of this Court is DIRECTED to enter
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judgment in favor of Plaintiff Rena R. Howard and against Defendant Michael J. Astrue,
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Commissioner of Social Security.
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IT IS SO ORDERED.
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Dated:
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June 16, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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