Kaplowitz v. Acting Commissioner of Social Security, No. 5:2018cv04008 - Document 33 (N.D. Cal. 2019)
Court Description: ORDER granting Plaintiff's Motion for Summary Judgment and denying Defendant's Cross-Motion for Summary Judgment Re Dkt. Nos. 30, 31, 32. Signed by Judge Susan van Keulen on 11/21/19. (svklc1S, COURT STAFF) (Filed on 11/21/2019)
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 GREG KAPLOWITZ, Case No. 18-cv-04008-SVK Plaintiff, 7 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT v. 8 9 ACTING COMMISSIONER OF SOCIAL SECURITY, 10 Re: Dkt. Nos. 31, 32 Defendant. 11 United States District Court Northern District of California Plaintiff appeals from the final decision of the Commissioner of Social Security denying 12 his application for Supplemental Security Income (“SSI”). For the reasons discussed below, the 13 Court remands the case for further proceedings. 14 15 I. BACKGROUND Plaintiff filed an application for SSI in 2014, alleging disability beginning November 27, 16 17 2013. See Dkt. 28 (Administrative Record (“AR”)) 466-468. An Administrative Law Judge (“ALJ”) held a hearing and issued an unfavorable decision on January 19, 2017. AR 13-33. The 18 ALJ found that Plaintiff had the following severe impairments: psoriatic arthritis, sacroiliitis, and 19 obesity. AR 18. The ALJ concluded that Plaintiff did not have an impairment or combination of 20 impairments that met or medically equaled one of the listed impairments. AR 20. The ALJ then 21 determined that Plaintiff’s residual functional capacity (“RFC”) limited him to light work with 22 additional limitations. Id. The ALJ concluded that Plaintiff was not disabled because he was 23 capable of performing past relevant work as a graphic designer, as well as other jobs existing in 24 significant numbers in the national economy. AR 26. 25 After the Appeals Council denied review, Plaintiff sought review in this Court. Dkt. 1 26 (Complaint). In accordance with Civil Local Rule 16-5, the parties filed cross-motions for 27 summary judgment (Dkt. 31, 32), which are now ready for decision without oral argument. 28 1 II. ISSUE FOR REVIEW 1. 2 3 4 5 STANDARD OF REVIEW This Court has the authority to review the Commissioner’s decision to deny disability 6 benefits, but “a federal court’s review of Social Security determinations is quite limited.” Brown- 7 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); see also 42 U.S.C. § 405(g). Federal courts 8 “leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve 9 ambiguities in the record.” Brown-Hunter, 806 F.3d at 492 (internal quotation marks and citation 10 United States District Court Northern District of California III. Did the ALJ err in assigning more weight to the opinions of the nonexamining state consultants, the examining state consultants, and the medical expert than that of Plaintiff’s two treating rheumatologists (Drs. Wahl and Margaretten) and his primary care physician (Dr. Kimberg)? omitted). 11 The Commissioner’s decision will be disturbed only if it is not supported by substantial 12 evidence or if it is based on the application of improper legal standards. Id. at 492. “Under the 13 substantial-evidence standard, a court looks to an existing administrative record and asks whether 14 it contains sufficient evidence to support the agency’s factual determinations,” and this threshold 15 is “not high.” Biestek v. Berryhill, -- U.S. --, 139 S. Ct. 1148, 1154 (2019) (internal quotation 16 marks, citation, and alteration omitted); see also Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 17 996, 1002 (9th Cir. 2015) (“Substantial evidence” means more than a mere scintilla but less than a 18 preponderance; it is “such relevant evidence as a reasonable mind might accept as adequate to 19 support a conclusion”) (internal quotation marks and citations omitted). The Court “must 20 consider the evidence as a whole, weighing both the evidence that supports and the evidence that 21 detracts from the Commissioner’s conclusion.” Rounds, 807 F.3d at 1002 (internal quotation 22 marks and citation omitted). Where the evidence is susceptible to more than one rational 23 interpretation, the Court must uphold the ALJ’s findings if supported by inferences reasonably 24 drawn from the record. Id. 25 Even if the ALJ commits legal error, the ALJ’s decision will be upheld if the error is 26 harmless. Brown-Hunter, 806 F.3d at 492. But “[a] reviewing court may not make independent 27 findings based on the evidence before the ALJ to conclude that the ALJ’s error was harmless.” Id. 28 The Court is “constrained to review the reasons the ALJ asserts.” Id. (internal quotation marks 2 1 and citation omitted). 2 IV. United States District Court Northern District of California 3 DISCUSSION Plaintiff challenges the ALJ’s evaluation of the medical evidence. In social security 4 disability cases, “[t]he ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 5 533 F.3d 1035, 1041 (9th Cir. 2008). Generally, the opinion of a treating physician is entitled to 6 more weight than the opinion of an examining physician, and more weight is given to the opinion 7 of an examining physician than a non-examining physician. Ghanim v. Colvin, 763 F.3d 1154, 8 1160 (9th Cir. 2014). Where a treating physician’s opinion is “well-supported by medically 9 acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other 10 substantial evidence” in the record, it must be given controlling weight. 20 C.F.R. 11 § 404.1527(c)(2). The ALJ must provide clear and convincing reasons, supported by substantial 12 evidence, for rejecting the uncontradicted opinion of treating physicians. Ghanim, 763 F.3d at 13 1160; see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (holding that ALJ can reject 14 uncontradicted treating physician’s opinion “by setting out a detailed and thorough summary of 15 the facts and conflicting medical evidence, stating his own interpretation thereof, and making 16 findings”) (internal quotation marks and citation omitted). Where contradicted, the opinion of 17 treating physicians may be rejected only for “specific and legitimate reasons that are supported by 18 substantial evidence.” Ghanim, 763 F.3d at 1160. 19 The ALJ cited two reasons for giving the opinions of Plaintiff’s three treating physicians, 20 Drs. Wahl, Margaretten, and Kimberg, “little weight”: (1) the treating physicians’ opinions 21 “provide drastically different limitations despite being formulated in relative proximity to each 22 other when the claimant’s condition would not have notably changed”; and (2) inconsistency 23 between the treating physicians’ opinions and their own treatment records. AR 25. Inconsistency among treating physicians’ opinions 24 A. 25 As to the first reason offered by the ALJ for giving the three treating physicians’ opinions 26 little weight, even if the ALJ was correct that the treating physicians’ opinions were in conflict, 27 that conflict merely determines the standard to be applied for not crediting the treating physicians’ 28 opinions; it is not a legally sufficient reason in itself for discounting those opinions. See Widmark 3 United States District Court Northern District of California 1 v. Bernhart, 454 F.3d 1063, 1066-67 n.2 (9th Cir. 2006) (existence of a conflict among medical 2 opinions by itself cannot constitute substantial evidence for rejecting a treating physician’s 3 opinion). To be sure, an ALJ may discount the opinion of a treating physician where it is in 4 conflict with the opinion of another treating physician. See, e.g., Shaw v. Astrue, 254 Fed. Appx. 5 707, 707 (9th Cir. 2007) (holding that treating doctor’s “opinions were fairly rejected by 6 conflicting and specific opinions of other treating physicians”). In that situation, however, the 7 ALJ must still provide legitimate and specific explanations for discounting the treating physician’s 8 opinion. See Matta v. Colvin, No. CV 12-8318 MRW, 2013 WL 2432252, at *3 (C.D. Cal. June 9 4, 2013). In Matta, for example, the district court found that the ALJ had provided legitimate and 10 specific reasons for discounting the opinion of a treating physician, Dr. Gavel, where the ALJ 11 “specifically discussed evidence in the record demonstrating that Dr. Gavel’s opinion of total 12 disability lacked objective support—and evidence that supported [another treating physician’s] 13 conclusions” and “explained why he credited the articulated findings of [the other] treating 14 physician.” Id. Here, the ALJ did not specifically discuss any evidence in the record that justified 15 her decision to give one physician’s opinion more weight than the others or to reject the treating 16 physicians’ opinions entirely. 17 In addition, the ALJ did not explain her reasons for concluding that the limitations 18 identified by the treating physicians were “drastically different.” See id. A review of the three 19 opinions identifies several areas where the physicians reached similar conclusions. For example, 20 the two treating physicians who addressed Plaintiff’s ability to lift and carry found limitations in 21 his ability to lift and carry weights of 10 and 20 pounds. AR 783 (Wahl opinion stating that 22 Plaintiff could rarely lift 10 pounds and never lift 20 pounds); AR 831 (Kimberg opinion stating 23 that Plaintiff could occasionally lift 10 pounds and rarely lift 20 pounds). Although these 24 physicians’ conclusions were not identical, the ALJ did not explain why she rejected both of the 25 treating physicians’ opinions on this point, as evidenced by her conclusion that Plaintiff could 26 perform light work, which would require “lifting no more than 20 pounds at a time with frequent 27 lifting or carrying of objects weighing up to 10 pounds.” Another example of a common 28 conclusion, by the two treating physicians who addressed the issue, is that Plaintiff would need a 4 1 job that permits ready access to a bathroom. AR 782 (Wahl); AR 824 (Margaretten). The ALJ 2 neither includes that limitation in her RFC determination nor explains why she rejected it. See AR 3 20. 4 United States District Court Northern District of California 5 Accordingly, the ALJ’s identification of a conflict between the treating physicians’ opinions, without more explanation, is not a sufficient reason to discount those opinions. 6 B. 7 The ALJ’s identification of inconsistencies between the treating physicians’ opinions and Inconsistency with treatment records 8 their objective findings may be a specific and legitimate reason to discount the physicians’ 9 opinion. See Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995). Here, the ALJ gave as a 10 second reason for discounting the treating physicians’ opinions her conclusion that “the providers’ 11 own treatment records failed to show swelling or tenderness of the joints on multiple occasions, 12 his inflammatory markers have decreased with treatment and the claimant’s psoriatic arthritis has 13 often been described as controlled.” AR 25 (citing Exs. 1F, 4F, 5F, 8F, 12F, 19F). However, 14 despite her reference to “multiple occasions,” the ALJ did not identify or address any particular 15 portion of the treating records, which total over 275 pages of the Administrative Record. The 16 Commissioner attempts to supply the information missing from the ALJ’s analysis by citing 17 particular portions of the medical record that the Commissioner argues support the ALJ’s 18 statement about inconsistencies with the treatment records. Dkt. 32 at 13-15. But “[w]hile the 19 Commissioner has proffered reasons why [the treating physicians’] opinion[s] could be discounted 20 by the ALJ, those reasons should be made in the first instance by the ALJ on the record.” Wallace 21 v. Apfel, No. C 00-0376 SI, 2001 WL 253222, at *4 n.5 (N.D. Cal. Mar. 2, 2001). 22 Under the “specific and legitimate reasons” standard, the ALJ was required to set out “a 23 detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] 24 interpretation thereof, and making findings.” Thomas, 278 F.3d at 957. “‘[B]road and vague 25 reasons’ do not suffice.” Klee v. Berryhill, No. 17-cv-00697-DMR, 2018 WL 3956337, at *13 26 (N.D. Cal. Aug. 17, 2018) (quoting McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989)). 27 Because the ALJ failed to cite particular entries in the medical records of Plaintiff’s treating 28 physicians that the ALJ found to be inconsistent with their opinions, the Court is unable to 5 1 2 C. 3 As discussed above, neither reason the ALJ identified for giving the treating physicians’ 4 opinions little weight constitutes a specific and legitimate reason for discounting those opinions. 5 Therefore, the Court concludes that the ALJ erred in evaluating the medical evidence. 6 V. 7 United States District Court Northern District of California conclude that the ALJ correctly weighed those opinions. Conclusion on evaluation of medical evidence DISPOSITION The Social Security Act permits courts to affirm, modify, or reverse the Commissioner’s 8 decision “with or without remanding the case for a rehearing.” 42 U.S.C. § 405(g); see also 9 Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014). “[W]here the record has been developed 10 fully and further administrative proceedings would serve no useful purpose, the district court 11 should remand for an immediate award of benefits.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th 12 Cir. 2004). However, “[r]emand for further proceedings is appropriate where there are 13 outstanding issues that must be resolved before a disability determination can be made, and it is 14 not clear from the record that the ALJ would be required to find the claimant disabled if all the 15 evidence were properly evaluated.” Luther v. Berryhill, 891 F.3d 872, 877–78 (9th Cir. 2018) 16 (citations omitted). 17 Because it is not clear from the record that the ALJ would be required to find Plaintiff 18 disabled if all the evidence were properly evaluated, remand is appropriate. On remand, the ALJ 19 must properly evaluate the medical evidence based on applicable law and the guidance provided in 20 this opinion. It is not the Court’s intent to limit the scope of the remand. 21 For the foregoing reasons, the Court GRANTS Plaintiff’s motion for summary judgment, 22 DENIES Defendant’s cross-motion for summary judgment, and REMANDS this case for further 23 proceedings. 24 25 SO ORDERED. Dated: November 21, 2019 26 ____________________ SUSAN VAN KEULEN United States Magistrate Judge 27 28 6
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