Collins v. Colvin, No. 2:2013cv00125 - Document 23 (E.D. Wash. 2014)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT granting ECF NO. 15 and denying ECF No. 21 Defendant's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 LEONARD COLLINS, 8 Plaintiff, 9 10 No. 2:13-CV-00125-JTR ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. 11 CAROLYN W. COLVIN, 12 Commissioner of Social Security, 13 14 15 Defendant. BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 16 Nos. 15, 21. Attorney Dana C. Madsen represents Plaintiff; Special Assistant 17 United States Attorney Diana Andsager represents the Commissioner of Social 18 Security (Defendant). The parties have consented to proceed before a magistrate 19 judge. ECF No. 13. After reviewing the administrative record and the briefs filed 20 by the parties, the court GRANTS Plaintiff’s Motion for Summary Judgment and 21 DENIES Defendant’s Motion for Summary Judgment. 22 JURISDICTION 23 On April 26, 2010, Plaintiff filed a Title II application for a period of 24 disability and disability insurance benefits, along with a Title XVI application for 25 supplemental security income, both alleging disability beginning May 1, 2006. Tr. 26 25; 156. Plaintiff alleged he was disabled due to diabetes, COPD, pancreatitis, 27 diabetic neuropathy, sleep apnea, gout, chronic bronchitis, asthma, arthritis, low 28 back problems, vision issues, and carpal tunnel syndrome. Tr. 103. Plaintiff’s ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 1 1 claim was denied initially and on reconsideration, and he requested a hearing 2 before an administrative law judge (ALJ). Tr. 75-81; 92-120. A hearing was held 3 on September 20, 2011, at which vocational expert Jinnie Lawson, medical expert 4 Alexander White, and Plaintiff, who was represented by counsel, testified. Tr. 41- 5 74. ALJ Marie Palachuk presided. Tr. 41. The ALJ denied benefits on October 6 12, 2011. Tr. 25-36. The instant matter is before this court pursuant to 42 U.S.C. 7 § 405(g). 8 STATEMENT OF FACTS 9 The facts have been presented in the administrative hearing transcript, the 10 ALJ’s decision, and the briefs of the parties and, thus, they are only briefly 11 summarized here. At the time of the hearing, Plaintiff was 53 years old, five-foot 12 eleven inches tall, weighed 233 pounds, completed the tenth grade, and he later 13 obtained a GED. Tr. 51. He was divorced and lived alone. Tr. 51. 14 He worked as a dump truck driver for several companies, and he also 15 worked briefly mixing concrete, cutting steel and washing dishes. Tr. 52-53. He 16 testified that he stopped driving trucks because after he was prescribed insulin for 17 his diabetes, he was “blind” for about three weeks. Tr. 54. He said he tried to 18 drive semi-trucks, but he could not master filling out the required driving logs. Tr. 19 67. 20 Plaintiff also testified that his Type II Diabetes makes him tired and weak, 21 he has chronic foot and ankle pain, and he cannot walk far or he becomes light- 22 headed, dizzy, and sometimes nauseous. Tr. 55. He said his hands are always 23 swollen and he cannot hold a cup longer than five minutes or it will drop out of his 24 hands. Tr. 56. 25 Plaintiff also testified that he never leaves his apartment unless he has to go 26 to a doctor appointment or grocery shopping. Tr. 60. He explained that when he 27 returns with groceries, he needs help to carry the groceries up the two flights of 28 stairs to his apartment. Tr. 60. After these trips, he described his condition as ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 2 1 “totally exhausted.” Tr. 57. He said he can walk a half a block before he runs out 2 of breath. Tr. 61. 3 Plaintiff said he does very little cleaning, and it takes him three or four days 4 to clean his apartment. Tr. 63. He does laundry about once a month, and he cooks 5 mostly by using the microwave. Tr. 63. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 STANDARD OF REVIEW In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the standard of review: A district court’s order upholding the Commissioner’s denial of benefits is reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The ALJ is responsible for determining credibility, resolving conflicts in 21 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 22 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 23 although deference is owed to a reasonable construction of the applicable statutes. 24 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 25 It is the role of the trier of fact, not this court, to resolve conflicts in 26 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 27 rational interpretation, the court may not substitute its judgment for that of the 28 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 3 1 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 2 still be set aside if the proper legal standards were not applied in weighing the 3 evidence and making the decision. Brawner v. Secretary of Health and Human 4 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to 5 support the administrative findings, or if conflicting evidence exists that will 6 support a finding of either disability or non-disability, the Commissioner’s 7 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 8 Cir. 1987). 9 10 SEQUENTIAL PROCESS The Commissioner has established a five-step sequential evaluation process 11 for determining whether a person is disabled. 20 C.F.R. §§404.1520(a), 12 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 13 through four, the burden of proof rests upon the claimant to establish a prima facie 14 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 15 burden is met once a claimant establishes that a physical or mental impairment 16 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 17 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 18 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 19 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 20 in the national economy which claimant can perform. Batson v. Commissioner of 21 Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an 22 adjustment to other work in the national economy, the claimant is deemed 23 disabled. 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v). 24 ALJ’S FINDINGS 25 At step one of the sequential evaluation, the ALJ found Plaintiff has not 26 engaged in substantial gainful activity since February 11, 2009, his alleged onset 27 date. Tr. 27. At step two, the ALJ found Plaintiff suffered from the severe 28 impairments of diabetes mellitus, pancreatitis secondary to diabetes mellitus, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 4 1 sensory neuropathy secondary to diabetes mellitus, chronic obstructive pulmonary 2 disease, mild, obstructive sleep apnea, controlled with CPAP, degenerative disc 3 disease, mild and depressive disorder. Tr. 27. At step three, the ALJ found 4 Plaintiff’s impairments, alone and in combination, did not meet or medically equal 5 one of the listed impairments. Tr. 28. The ALJ determined that Plaintiff had the 6 residual functional capacity (“RFC”) to perform less than the full range of light 7 work: 8 9 10 11 12 13 14 The claimant can perform all postural movements occasionally except he can never climb ladders, ropes, or scaffolds. The claimant can perform manipulative movements bilaterally frequently. The claimant should avoid concentrated exposure to cold and even moderate exposure to vibration, respiratory irritants, and hazards. The claimant is able to maintain attention and concentration for up to two-hour intervals between regularly scheduled breaks. The claimant can have only superficial contact with the public and/or coworkers. It would be best for the claimant to deal with things rather than people. 15 16 Tr. 30. At step four, the ALJ found that Plaintiff is not capable of performing past 17 relevant work. Tr. 34. The ALJ determined, in light of Plaintiff’s age, education, 18 work experience, and residual functional capacity, there are jobs that exist in 19 significant numbers in the national economy that the claimant can perform, such as 20 escort vehicle driver, pricer/marker and copy machine operator. Tr. 35. The ALJ 21 concluded Plaintiff was not disabled as defined by the Social Security Act. Tr. 36. 22 ISSUES 23 24 Plaintiff contends that the ALJ erred by rejecting the opinions of W. Scott Mabee, Ph.D., and Karen Bichler, ARNP. ECF No. 15 at 12-16.1 25 26 1 In his argument that the ALJ failed to properly credit the medical opinion 27 evidence, Plaintiff mentions the opinions of Melody Bemis, ARNP, and Sydney J. 28 Lindgren, MS, NCC. ECF No. 15 at 13. However, Plaintiff provides no analysis ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 5 1 2 DISCUSSION As a general rule, more weight should be given to the opinion of a treating 3 source than to the opinion of doctors who do not treat the claimant. Lester, 81 F.3d 4 at 830. Where the treating doctor's opinion is not contradicted by another doctor, it 5 may be rejected only for "clear and convincing" reasons. Id. Where the treating 6 doctor's opinion is contradicted by another doctor, the ALJ may not reject this 7 opinion without providing "specific and legitimate reasons" supported by 8 substantial evidence in the record. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 9 1983). Where a medical source's opinion is based largely on the Plaintiff's own 10 subjective description of symptoms, and the ALJ has discredited the Plaintiff's 11 claim as to those subjective symptoms, the ALJ may reject that opinion. Fair v. 12 Bowen, 885 F.2d at 605; and see Diaz v. Sec'y of Health & Human Servs., 898 F.2d 13 774, 777 (10th Cir. 1990) (Commissioner appropriately discounted claimant's 14 nonexertional impairment complaints due to lack of corroborative evidence and 15 consulting physician's suspicion that claimant was malingering). When providing 16 reasons for rejecting opinion evidence, the ALJ should provide “a detailed and 17 thorough summary of the facts and conflicting clinical evidence, stating his 18 interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 19 (9th Cir. 1998). The ALJ must do more than merely state his conclusions: "[h]e 20 must set forth his own interpretations and explain why they, rather than the 21 doctors', are correct." Id. (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 22 1988)). The ALJ must explain the weight assigned to “other” sources to the extent 23 24 or argument related specifically to these providers, and thus the court does not 25 address the ALJ’s analysis of these medical opinions. See Carmickle v. Comm'r 26 Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (court ordinarily will not 27 consider matters on appeal that are not specifically and distinctly argued in an 28 appellant's opening brief). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 6 1 that a claimant or subsequent reviewer may follow the ALJ's reasoning. SSR 06- 2 03p. 3 A. W. Scott Mabee, Ph.D. 4 Plaintiff contends that the ALJ failed to properly credit the opinions of W. 5 Scott Mabee, Ph.D. Specifically, Plaintiff argues that Dr. Mabee was entitled to 6 rely upon Plaintiff’s subjective complaints because he performed an extensive 7 evaluation of Plaintiff that included objective testing. ECF No. 15 at 14-15. 8 Additionally, Plaintiff argues that Dr. Mabee’s status as an examining physician 9 and the purpose of the evaluation are improper reasons to discount the opinion. 10 ECF No. 15 at 14-15. 11 On February 3, 2011, W. Scott Mabee, Ph.D., examined Plaintiff and 12 completed a Psychological/psychiatric evaluation. Tr. 496-510. Dr. Mabee 13 referenced Plaintiff’s prior evaluation performed in May 2008 at the same clinic, 14 and indicated it was “unlikely” Plaintiff’s 2008 WAIS-III test scores “accurately 15 reflected his functioning” because he gave “very poor effort.” Tr. 496. Similarly, 16 in the 2011 evaluation, Dr. Mabee related that Plaintiff’s MMPI-2-RF profile as 17 invalid “due to excessive endorsement of symptoms.” Tr. 499. Dr. Mabee 18 interpreted these results to reveal that Plaintiff has “a tendency to magnify his 19 difficulties and views his life in a particularly negative manner. Throughout his 20 evaluation, he provided very poor effort on all tasks. This appears to be a pattern 21 for him.” Tr. 499. Dr. Mabee explained that Plaintiff’s psychological impairments 22 would likely prevent him from maintaining employment: Currently, Mr. Collins’ mind is so preoccupied with his disabilities and issues, he has little energy to devote to outside activities. He reports difficulty with others and would need to work as independently as possible. It is unlikely he would be able to obtain or maintain employment in a traditional setting. 23 24 25 26 27 Tr. 498. Dr. Mabee diagnosed Plaintiff with undifferentiated somatoform disorder, 28 major depressive disorder, recurrent, moderate, paranoid features and borderline ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 7 1 2 intellectual functioning. Tr. 497. In the check-the-box portion of the form, Dr. Mabee rated Plaintiff with 3 marked impairments in the abilities to: (1) understand, remember, and persist in 4 tasks by following complex instructions of three or more steps; (2) communicate 5 and perform effectively in a work setting with public contact; (3) maintain 6 appropriate behavior in a work setting. Tr. 498. After each check-the-box rating, 7 Dr. Mabee provided an explanation, that included, “poor attention, motivation, and 8 exhibited extremely poor effort on both visits to this clinic;” “[mental health] and 9 disordered personality”; and “will be inconsistent in attendance and poor in 10 performance; limited interpersonal skills.” Tr. 498. 11 The ALJ gave several reasons for giving little weight to Dr. Mabee’s 12 opinion: (1) the MMPI was invalid; (2) the opinion was largely based upon 13 Plaintiff’s subjective complaints; (3) the opinion was provided on a check-the-box 14 form with “few objective findings”; (4) the evaluation was conducted in 15 conjunction with an application for state welfare assistance; and (5) Dr. Mabee was 16 not a treating source. Tr. 33. 17 The ALJ’s first three reasons for giving little weight to Dr. Mabee’s opinion 18 are not supported by the record. First, the MMPI test score was deemed invalid, 19 but Dr. Mabee’s interpretation of those results were not that Plaintiff was 20 malingering as Defendant suggests, but instead, poor effort is a symptom of 21 Plaintiff’s mental health impairment. Tr. 498-99. As a lay person, an ALJ is "not 22 at liberty to ignore medical evidence or substitute his own views for 23 uncontroverted medical opinion"; he is "simply not qualified to interpret raw 24 medical data in functional terms." Nguyen v. Chater, 172 F.3d 31, 35 (1st 25 Cir.1999). 26 The ALJ also rejected the opinion because it was largely based upon 27 Plaintiff’s subjective complaints. The record does not support this assertion. Dr. 28 Mabee indicated he reviewed Plaintiff’s record and test scores from his 2008 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 8 1 testing with the same clinic. Tr. 496. Additionally, Dr. Mabee performed a mental 2 status exam, administered the MMPI-2-RF, and observed several of Plaintiff’s 3 symptoms (i.e., depression, poor attention and concentration/memory issues, 4 paranoia, preoccupation with physical health issues, poor effort when asked to 5 complete tasks) during the examination. Tr. 497. Dr. Mabee did not find Plaintiff 6 was malingering or deceptive. 7 In sum, Dr. Mabee performed two examinations of Plaintiff, several years 8 apart, and conducted extensive objective psychological testing. He provided an 9 explanation for each of his ratings. As a result, the record reveals Dr. Mabee did 10 not simply rely upon Plaintiff’s subjective complaints in arriving at his opinions. 11 See Regennitter v. Commissioner of SSA, 166 F.3d 1294, 1300 (9th Cir. 1999) 12 (ALJ erred by discounting examining doctor opinion on basis that he accepted 13 patient’s subjective complaints at “face value”). 14 Next, the ALJ gave little weight to Dr. Mabee’s opinion because it was 15 provided on a check-the-box form with “few objective findings.” Tr. 33. An ALJ 16 may properly reject a treating physician's opinion that is conclusory and 17 unsupported by clinical findings, particularly check-the-box style forms. See 18 Batson, 359 F.3d at 1195 (holding that the ALJ did not err in giving minimal 19 evidentiary weight to the opinions of the plaintiff's treating physician where the 20 opinion was in the form of a checklist, did not have supportive objective evidence, 21 was contradicted by other statements and assessments of the plaintiff's medical 22 condition, and was based on the plaintiff's subjective descriptions of pain). 23 However, the record in this case does not support the ALJ’s reasoning. In 24 completing the Psychological/psychiatric form, Dr. Mabee provided significantly 25 more information than just checked boxes. For example, Dr. Mabee provided 26 details about Plaintiff’s records he reviewed, including previous test results. Tr. 27 496. He also provided a list of multiple symptoms he observed, and he described 28 how each symptom would affect Plaintiff’s work activities. Tr. 497. Dr. Mabee ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 9 1 also provided a narrative of a typical day for Plaintiff, and he provided a personal 2 observation after each checked box assessment. Tr. 497-98. Finally, Dr. Mabee 3 provided “additional remarks” that explains why Plaintiff magnifies his difficulties 4 and views his life in a particularly negative manner. Tr. 499. Dr. Mabee also 5 provided eleven pages of Plaintiff’s test results. Tr. 500-510. Because Dr. Mabee 6 provided more than checked boxes, and instead he provided interpretation and 7 opinion based upon his review of Plaintiff’s previous test results and his 8 examination, the ALJ’s reason for discounting Dr. Mabee’s opinion is not 9 supported by the record. 10 The final two reasons the ALJ gave for discounting Dr. Mabee’s opinion – 11 because the evaluation was conducted in conjunction with an application for state 12 welfare assistance and because Dr. Mabee was not a treating source – are contrary 13 to caselaw. First, it is well-established that the purpose for which medical reports 14 are obtained does not provide a legitimate basis for rejecting the reports. Lester v. 15 Chater, 81 F.3d 821, 832 (9th Cir. 1995). Second, an examining physician’s 16 opinion is generally entitled to more weight than a non-examining physician’s 17 opinion. The medical opinions of three types of medical sources are recognized in 18 social security cases: "(1) those who treat the claimant (treating physicians); (2) 19 those who examine but do not treat the claimant (examining physicians); and (3) 20 those who neither examine nor treat the claimant (nonexamining physicians)." 21 Lester, 81 F.3d at 830. An examining physician’s opinion may not be discounted 22 merely because the physician is not a treating physician. As a result, the ALJ erred 23 by discounting Dr. Mabee’s opinion because it was obtained for the purpose of 24 welfare benefits and because he was an examining medical provider. 25 The vocational expert testified that when the limitations assessed by Dr. 26 Mabee are considered as part of Plaintiff’s RFC, the Plaintiff would not be able to 27 perform any work. Tr. 73. As such, this case requires remand for the ALJ to 28 reconsider Dr. Mabee’s opinion. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 10 1 B. Karen Bichler, ARNP 2 Plaintiff contends that the ALJ relied upon improper factors in discounting 3 Ms. Bichler’s opinions, including that Plaintiff was noncompliant with treatment 4 when examined, the fact the opinions were obtained in connection with an attempt 5 to qualify for state assistance, and her opinions were inconsistent with Plaintiff’s 6 testimony. ECF No. 15 at 16-17. 7 On April 3, 2009, Karen D. Bichler, ARNP, signed a Physical Evaluation 8 form. Tr. 275-78. The form was left blank, and indicated “see chart note” on two 9 pages, and an April 3, 2009, Progress Note was appended to the form. Tr. 276-77; 10 279-82. In the Note, Ms. Bichler indicates Plaintiff presented for a GAU 11 evaluation, and he suffered from asthma/COPD complicated by chronic bronchitis 12 and recurrent pneumonia, with 3-4 episodes of pneumonia in the past year. Tr. 13 279. Ms. Bichler also noted Plaintiff had severe hyperlipidemia, complicated by 14 pancreatitis, for which he was hospitalized in November 2008. Tr. 279. The note 15 also indicates Plaintiff has Type II Diabetes, poorly controlled, and he has 16 hypertension. Tr. 279. 17 Ms. Bichler concluded that Plaintiff required an evaluation and stress test by 18 a cardiologist, and she recommended referral to a pulmonologist. She found that 19 his impairments posed moderate, or significant, interference with walking, lifting, 20 handling, carrying and seeing. Tr. 280. Ms. Bichler opined that Plaintiff’s overall 21 work level is severely limited, and she noted he is unable to lift at least two 22 pounds, or unable to stand or walk. Tr. 280. Ms. Bichler added a comment: “With 23 the level of Mr. Collins’ lipids, he needs a stress test, and it is likely that he will 24 end up having open heart surgery. I ordered some tests and recommended 25 specialist referrals, but Mr. Collins is unable to work.” Tr. 281. 26 The ALJ rejected Ms. Bichler’s opinion for three reasons: (1) “the opinion 27 was given when [Plaintiff] was non-compliant with treatment for pancreatitis and 28 was thus more impaired”; (2) “the evaluation was conducted in connection with ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 11 1 determining eligibility for state welfare assistance and thus the claimant had 2 incentive overstate his symptoms and complaints”; (3) the opinion was 3 “inconsistent with the claimant’s own testimony of his limitations” related to 4 lifting, standing and walking. Tr. 32. An impairment that can be controlled by 5 treatment or medication is not considered disabling. Warre v. Comm'r of Soc. Sec. 6 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); 20 C.F.R. § 404.1530(a) ("In order to 7 get benefits, you must follow treatment prescribed by your physician if this 8 treatment can restore your ability to work."). 9 Plaintiff asserts that the ALJ’s reliance upon Plaintiff’s noncompliance with 10 medication is immaterial, in light of Plaintiff’s continued critical pancreatitis 11 condition. ECF No.15 at 16. It is not clear from the report that Plaintiff was not 12 compliant with pancreatitis treatment. Ms. Bichler noted that Plaintiff has severe 13 hyperlipidemia, complicated by pancreatitis, and explained “many lipid lowering 14 agents aggravate pancreatitis.” Tr. 279. In other words, Plaintiff’s medications 15 for his hypertriglyceridemia can trigger an attack of pancreatitis. Additionally, as 16 Plaintiff points out, he was subsequently admitted to the hospital with repeated 17 episodes of acute pancreatitis. Tr. 324-31;2 311-19;3 458-77.4 As a result, the 18 19 20 2 July 26-29, 2009, Plaintiff was admitted for pancreatitis. Doctors opined 21 the cause of the pancreatitis was a significant elevation of triglycerides. Tr. 324. 22 Chart notes also indicate that Plaintiff’s elevated blood sugars were “difficult to 23 control” and required “high doses” of insulin. Tr. 324. 24 3 November 18-20, 2009, Plaintiff was admitted with “acute pancreatitis.” 25 Tr. 311. Notes indicate Plaintiff was taking insulin as prescribed, but nevertheless, 26 his blood sugars were significantly elevated. Tr. 311. 27 28 4 March 3-6, 2011, Plaintiff was admitted with acute pancreatitis. Notes indicate that contrary to Plaintiff’s belief that his diabetes caused the pancreatitis, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 12 1 record does not support the ALJ’s reasoning that Ms. Bichler’s opinion should be 2 discounted because at the time she provided her opinion, Plaintiff was 3 noncompliant with medications.5 4 The ALJ also rejected Ms. Bichler’s opinion because it was obtained in the 5 process of Plaintiff’s application for state assistance. Tr. 32. As explained above, 6 the purpose for which a medical report is obtained does not provide a legitimate 7 basis for rejecting the report. Lester, 81 F.3d at 832 (“An examining doctor's 8 findings are entitled to no less weight when the examination is procured by the 9 claimant than when it is obtained by the Commissioner.”); see also Reddick, 157 10 F.3d at 726 (“[I]n the absence of other evidence to undermine the credibility of a 11 medical report, the purpose for which the report was obtained does not provide a 12 legitimate basis for rejecting it.”). 13 The ALJ’s final reason for rejecting Ms. Bichler’s evaluation was that her 14 opinion was “inconsistent with the claimant’s own testimony of his limitations” 15 related to lifting, standing and walking. Tr. 32. Specifically, the ALJ cited Ms. 16 Bichler’s contention that Plaintiff could not lift two pounds and was unable to 17 stand or walk, compared with Plaintiff’s testimony that he could lift and carry a 12- 18 pack of soda and walk half a block. Tr. 32. 19 A contradiction between a medical opinion and Plaintiff’s admitted activities 20 is a specific and legitimate reason for discounting a medical provider’s opinion. 21 See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (noting that a treating 22 23 24 “previous episodes were due to hypertriglyceridemia,” and a later note indicated “ACE inhibitors can also cause this.” Tr. 458; 462. 5 25 26 27 28 It is notable that in two instances, hospital records reveal that Plaintiff’s mental limitations may be a contributing factor in his inability to understand and comply with instructions relating to medication compliance and management of his condition. Tr. 311; 573. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 13 1 physician's opinion may be discounted where it is inconsistent with a claimant's 2 level of functioning). In this case, Plaintiff testified that he is able to walk half a 3 block until he needs to rest, he can stand in line for no more than 15 minutes and 4 sit in chair for half an hour. Tr. 62. It is unreasonable to literally interpret Ms. 5 Bichler’s assessment that Plaintiff was “unable to stand or walk” because the 6 records do not indicate Plaintiff was unable to walk into the examination room. It 7 is more likely that Ms. Bichler intended that Plaintiff would be unable to walk or 8 sit long enough to complete an eight-hour workday. Also, when asked how much he could “lift and carry,” Plaintiff responded 9 10 “[a]12-pack of soda and that’s about it.” Tr. 62. The ALJ cited this fact as 11 contrary to Ms. Bichler’s opinion that Plaintiff can carry no more than two pounds. 12 Tr. 32. Plaintiff argues that Ms. Bichler’s opinion is reasonably interpreted as 13 indicating Plaintiff was able to only lift two pounds consistently, throughout the 14 day. ECF No. 15 at 17. Plaintiff also testified that he can purchase groceries and 15 put them in his car, he has to have someone help him carry them up to his 16 apartment. Tr. 60. 17 Because this case must be remanded, the ALJ may request clarification, 18 further develop the record on this issue, or reconsider Ms. Bichler’s opinion and 19 provide a new analysis. Generally in Social Security cases, the ALJ has a special 20 duty to "develop the record fully and fairly and to ensure that the claimant's 21 interests are considered, even when the claimant is represented by counsel." 22 Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). An ALJ's duty to further 23 develop the record is triggered when ambiguous evidence exists, or when the 24 record is inadequate to allow for the proper evaluation of the evidence. Id. at 459- 25 460; accord Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (no duty 26 exists to re-contact doctors if the evidence in the record is adequate to make 27 determination.). 28 /// ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 14 CONCLUSION 1 2 Having reviewed the record and the ALJ's findings, the court concludes the 3 ALJ's decision is not supported by substantial evidence and is based on legal error. 4 On remand, the ALJ should reconsider the medical opinions and if necessary, 5 determine a new RFC, and conduct a new step four and step five assessment. 6 Accordingly, 7 IT IS HEREBY ORDERED: 8 1. 9 10 11 Plaintiff's Motion for Summary Judgment, ECF No. 15, is GRANTED and remanded for additional proceedings. 2. Defendant's Motion for Summary Judgment, ECF No. 21, is DENIED. 12 3. An application for attorney fees may be filed by separate motion. 13 The District Court Executive is directed to file this Order and provide a copy 14 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 15 the file shall be CLOSED. 16 DATED February 10, 2014. 17 18 19 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 15
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