Barbara Boscia v. Nancy A. Berryhill, No. 8:2017cv01427 - Document 30 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish. In this case, there are outstanding issues that must be resolved before a final determination can be made. The record raises crucial questions as to how Plaintiff's impairmen ts and limitations affect her RFC, given the ALJ's failure to properly evaluate Dr. Ho's opinion. See Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015) (it is up to the ALJ, not the court, to determine how [a claimant's] imp airments affect the formulation of [her] RFC). Because the record is not fully developed and Plaintiff's entitlement to benefits remains unclear, remand for further administrative proceedings would be useful. See Garrison, 759 F.3d at 1020. On remand, the ALJ should conduct a review of the entire record in a manner that is consistent with the Courts findings. (ec)
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Barbara Boscia v. Nancy A. Berryhill Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Case No. 8:17-cv-01427-GJS BARBARA BOSCIA, 12 MEMORANDUM OPINION AND ORDER Plaintiff 13 14 15 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 18 19 I. PROCEDURAL HISTORY Plaintiff Barbara Boscia (“Plaintiff”) filed a complaint seeking review of the 20 decision of the Commissioner of Social Security denying her application for 21 Disability Insurance Benefits (“DIB”). The parties filed consents to proceed before 22 the undersigned United States Magistrate Judge [Dkts. 11 and 12] and briefs [Dkt. 23 25 (“Pl. Br.”), Dkt. 28 (“Def. Br.”)] addressing disputed issues in the case. The 24 matter is now ready for decision. For the reasons discussed below, the Court finds 25 that this matter should be remanded. 26 27 28 II. ADMINISTRATIVE DECISION UNDER REVIEW Plaintiff filed an application for DIB in February 2014, alleging disability Dockets.Justia.com 1 beginning on April 13, 2013. [Dkt. 15, Administrative Record (“AR”) 30, 222-23.] 2 Plaintiff’s application was denied at the initial level of review and on 3 reconsideration. [AR 30, 126-30, 134-38.] A hearing was held before 4 Administrative Law Judge Sharilyn Hopson (“the ALJ”) on January 27, 2016. [AR 5 49-82.] 6 On March 3, 2016, the ALJ issued an unfavorable decision applying the five- 7 step sequential evaluation process for assessing disability [AR 12-19]. 20 C.F.R. § 8 404.1520(a)(4). At step one, the ALJ found Plaintiff had not engaged in substantial 9 gainful activity since her alleged onset date. [AR 32.] At step two, the ALJ 10 determined that Plaintiff suffered from the severe impairments of ulcerative colitis, 11 drug induced pneumonitis, asthmatic bronchitis, rheumatoid arthritis, avascular 12 necrosis of femoral head (left hip), anxiety, and depression. [AR 32.] The ALJ 13 determined at step three that Plaintiff did not have an impairment or combination of 14 impairments that meets or medically equals the severity of one of the impairments 15 listed in Appendix I of the Regulations (“the Listings”) [AR 33]. See 20 C.F.R. Pt. 16 404, Subpt. P, App. 1. Next, the ALJ found that Plaintiff had the residual functional 17 capacity (“RFC”) to perform a range of light work (20 C.F.R. § 404.1567(b)), 18 including the ability to lift and/or carry up to 10 pounds frequently and 20 pounds 19 occasionally, stand, walk, or sit 6 hours in an 8-hour workday, and occasionally 20 climb stairs, balance, stoop, kneel, crouch, and crawl, but Plaintiff could not climb 21 ladders, ropes or scaffolds, must avoid concentrated exposure to extreme cold, 22 extreme heat, and pulmonary irritants such as dust and fumes, and is limited to 23 simple tasks with a reasoning level of three or less, with no direct public contact. 24 [AR 35.] In addition, the ALJ found that Plaintiff’s worksite must be within a 100 25 yards of a bathroom and Plaintiff must be able to take a 1 to 3 minute break every 26 hour. [Id.] At step four, the ALJ determined that Plaintiff is not able to perform any 27 past relevant work. [AR 40-41.] At step five, the ALJ concluded that Plaintiff is 28 able to perform the requirements of representative occupations, such as general 2 1 2 3 4 office machine operator and information clerk. [AR 41-42.] The Appeals Council denied review of the ALJ’s decision on June 20, 2017. [AR 2-5.] This action followed. Plaintiff raises the following issues challenging the ALJ’s findings and 5 determination of non-disability: (1) the ALJ failed to properly consider relevant 6 medical evidence in the assessment of her RFC; and (2) the ALJ erred by rejecting 7 Plaintiff’s subjective symptom testimony. [Pl. Br. at 12-22.] Plaintiff requests 8 reversal and remand for payment of benefits. [Pl. Br. at 23.] The Commissioner 9 requests that the ALJ’s decision be affirmed, or in the alternative, remanded for 10 further development of the record if the Court finds error in the ALJ’s consideration 11 of the record. [Def. Br. at 9-11.] 12 13 14 III. GOVERNING STANDARD Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 15 determine if: (1) the Commissioner’s findings are supported by substantial 16 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 17 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 18 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted). 19 “Substantial evidence is more than a mere scintilla but less than a preponderance; it 20 is such relevant evidence as a reasonable mind might accept as adequate to support a 21 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 22 2014) (internal citations omitted). 23 The Court will uphold the Commissioner’s decision when the evidence is 24 susceptible to more than one rational interpretation. Molina v. Astrue, 674 F.3d 25 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated 26 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 27 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not 28 reverse the Commissioner’s decision if it is based on harmless error, which exists if 3 1 the error is “inconsequential to the ultimate nondisability determination, or if despite 2 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. 3 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations 4 omitted). 5 IV. 6 DISCUSSION 7 A. Plaintiff’s RFC 8 Plaintiff contends that the ALJ erred in assessing her RFC by failing to 9 properly consider the opinion of her treating rheumatologist, Dr. Gerald Ho. [Pl.’s 10 Br. at 12-18.] “There are three types of medical opinions in social security cases: those 11 12 from treating physicians, examining physicians, and non-examining physicians.” 13 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009); see also 14 20 C.F.R. § 404.1527. In general, a treating physician’s opinion is entitled to more 15 weight than an examining physician’s opinion and an examining physician’s opinion 16 is entitled to more weight than a nonexamining physician’s opinion. See Lester v. 17 Chater, 81 F.3d 821, 830 (9th Cir. 1995). “The medical opinion of a claimant’s 18 treating physician is given ‘controlling weight’ so long as it ‘is well-supported by 19 medically acceptable clinical and laboratory diagnostic techniques and is not 20 inconsistent with the other substantial evidence in [the] case record.’” Trevizo v. 21 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)).1 22 23 1 24 25 26 27 28 For claims filed on or after March 27, 2017, the opinions of treating physicians are not given deference over non-treating physicians. See 20 C.F.R. § 404.1520c (providing that the Social Security Administration “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources”); 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). Because Plaintiff’s claim was filed before March 27, 2017, the medical evidence is evaluated pursuant to the treating physician rule discussed above. See 20 C.F.R. § 404.1527; [Def. Br. at 5 n.5 (citing Social Security Ruling (“SSR”) 96-2p).] 4 1 An ALJ must provide clear and convincing reasons supported by substantial 2 evidence to reject the uncontradicted opinion of a treating or examining physician. 3 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester, 81 F.3d at 4 830-31). Where such an opinion is contradicted, however, an ALJ may reject it only 5 by stating specific and legitimate reasons supported by substantial evidence. 6 Bayliss, 427 F.3d at 1216; Trevizo, 871 F.3d at 675. The ALJ can satisfy this 7 standard by “setting out a detailed and thorough summary of the facts and 8 conflicting clinical evidence, stating [her] interpretation thereof, and making 9 findings.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Reddick 10 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); see also 20 C.F.R. § 404.1527(c)(2)- 11 (6) (when a treating physician’s opinion is not given controlling weight, factors such 12 as the nature, extent, and length of the treatment relationship, the frequency of 13 examinations, the specialization of the physician, and whether the physician’s 14 opinion is supported by and consistent with the record should be considered in 15 determining the weight to give the opinion). 16 Dr. Ho, who treated Plaintiff between June 2015 and January 2016, 17 completed an Attending Physician’s Statement (For Continuing Disability) in 18 December 2015. [AR 1956-58, 1962, 2004.] He diagnosed Plaintiff with ulcerative 19 colitis, rheumatoid arthritis, and fibromyalgia and assessed Plaintiff with significant 20 work-related limitations. [AR 1956.] Dr. Ho found that Plaintiff could not lift more 21 than 10 pounds, stand more than 25 minutes, use her hands for work, weight-bear, 22 climb, crawl, operate machinery, or be exposed to heights. [AR 1956-57.] Dr. Ho 23 cited Plaintiff’s pain, swelling, and stiffness in multiple joints in support of his 24 opinion. [AR 1957.] He also noted that Plaintiff’s medications caused altered 25 alertness, dizziness, sleepiness, and unsafe performance. [AR 1957.] He opined 26 that Plaintiff was unable to work due to her work restrictions. [AR 1957.] 27 28 The ALJ gave “little weight” to the work restrictions assessed by Dr. Ho, finding that they were “unsupported by the objective evidence,” “inconsistent with 5 1 the substantial medical evidence,” and “internally inconsistent and contradictory to 2 the information he reported.” [AR 37.] 3 In assessing Plaintiff’s work limitations, the ALJ gave “great weight” to the 4 opinion of Dr. Arnold Ostrow, the non-examining medical expert who testified at 5 the hearing that Plaintiff was capable of performing a range of light work, consistent 6 with the ALJ’s RFC assessment. [AR 35, 37, 58.] 7 Plaintiff contends the ALJ failed to provide specific and legitimate reasons for 8 rejecting Dr. Ho’s opinion and erred by relying on Dr. Ostrow’s assessment. [Pl. 9 Br. at 15, 18.] Defendant responds that the ALJ properly accorded less weight to 10 Dr. Ho’s opinion, as his records do not provide adequate support for the substantial 11 limitations he assessed. [Def. Br. at 7.] Defendant further argues that Dr. Ostrow’s 12 opinion deserved more weight as it was “well reasoned and generally consistent 13 with the record as a whole.” [Def. Br. at 5 (citing AR 38).] 14 The ALJ’s broad and conclusory statements describing Dr. Ho’s opinion as 15 “unsupported by the objective evidence” and “inconsistent with the substantial 16 medical evidence” were not specific and legitimate reasons for discounting Dr. Ho’s 17 opinion. See Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (“To say that 18 medical opinions are not supported by sufficient objective findings or are contrary to 19 the preponderant conclusions mandated by the objective findings does not achieve 20 the level of specificity our prior cases have required . . . The ALJ must do more than 21 offer his conclusions. He must set forth his own interpretations and explain why 22 they, rather than the doctors’, are correct.”); Rodriguez v. Bowen, 876 F.2d 759, 762 23 (9th Cir. 1989) (same). While the ALJ summarized Dr. Ho’s assessment of 24 Plaintiff’s functional limitations, the ALJ failed to specifically explain how such 25 findings conflicted with the medical evidence of record. [AR 37.] Moreover, the 26 record contained medical evidence supporting Dr. Ho’s opinion. [Pl. Br. at 17.] A 27 November 2014 MRI of Plaintiff’s left hip confirmed Dr. Ho’s assessment that 28 Plaintiff suffers from avascular necrosis. [AR 1977, 2002, 2006, 2011, 2020, 2025, 6 1 2030, 2035, 2042.] Dr. Ho’s treatment records documented Plaintiff’s neck and 2 back pain, tenderness and swelling in multiple joints, and 14 of 18 positive trigger 3 points. [AR 2000, 2005-06, 2009-11, 2013-15, 2018-20, 2023-25, 2028-30, 2033- 4 35, 2042-42.] Although Defendant now criticizes Dr. Ho’s finding that Plaintiff 5 could not use her hands for failing to “provide any discussion about how, if at all, 6 [Plaintiff’s] gripping or manipulation abilities were limited,” the ALJ’s decision 7 cannot be affirmed based on Defendant’s post hoc rationalizations. See Bray v. 8 Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing 9 principles of administrative law require [the Court] to review the ALJ’s decision 10 based on the reasoning and factual findings offered by the ALJ - not post hoc 11 rationalizations that attempt to intuit what the adjudicator may have been 12 thinking.”); Molina, 674 F.3d at 1121 (“we may not uphold an agency’s decision on 13 a ground not actually relied on by the agency”). 14 The ALJ asserted that Dr. Ho’s opinion was “internally inconsistent and 15 contradictory to the information he reported,” because he listed fibromyalgia as one 16 of Plaintiff’s diagnoses in the Attending Physician’s Statement, but “none of his 17 treatment notes documents a fibromyalgia diagnosis” and “no other treating 18 physician diagnosed fibromyalgia.” [AR 37.] An ALJ may reject a physician’s 19 opinion that conflicts with the physician’s treatment notes. See Connett v. Barnhart, 20 340 F.3d 871, 874-75 (9th Cir. 2003) (affirming ALJ’s rejection of physician’s 21 opinion as claimant’s assessed limitations were not supported by physician’s own 22 treatment notes); Gabor v. Barnhart, 221 Fed. App’x 548, 550 (9th Cir. 2007) 23 (“internal inconsistencies” in physician’s own report provided a proper basis for 24 excluding that medical opinion). Here, however, the record supports a diagnosis of 25 fibromyalgia. Dr. Ho’s treatment records document 14 of 18 positive trigger points 26 and evidence of widespread pain and other disorders not accounting for the pain. 27 [AR 2000, 2005-06, 2009-11, 2013-15, 2018-20, 2023-25, 2028-30, 2033-35, 2042- 28 42; Def. Br. at 7 n.8.] See Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017) 7 1 (setting forth criteria for diagnosing fibromyalgia) (citing SSR 12-2p). In addition, 2 the record includes references to Plaintiff’s history of fibromyalgia. [AR 2107, 3 2113, 2136.] Thus, the ALJ erred in concluding that Plaintiff’s fibromyalgia 4 diagnosis was not supported by Dr. Ho’s treatment records or the medical evidence 5 of record. 6 Finally, the ALJ gave “great weight” to the opinion of Dr. Ostrow, who found 7 that Plaintiff’s functional limitations were significantly less than those found by Dr. 8 Ho. [AR 37-38, 56-64.] However, “[t]he opinion of a non-examining doctor cannot 9 by itself constitute substantial evidence that justifies the rejection of the opinion of 10 either an examining physician or a treating physician.” Lester, 81 F.3d at 831; 11 Erickson v. Shalala, 9 F.3d 813, 818 n.7 (9th Cir. 1993) (“[t]he non-examining 12 physicians’ conclusion, with nothing more, does not constitute substantial 13 evidence”) (internal quotation marks and citation omitted). 14 Accordingly, the ALJ erred by rejecting Dr. Ho’s opinion regarding 15 Plaintiff’s work-related limitations without providing specific and legitimate reasons 16 doing so. 17 18 19 V. CONCLUSION The Court has discretion to remand or reverse and award benefits. See 20 Trevizo, 871 F.3d at 682. Where no useful purpose would be served by further 21 proceedings and the record has been fully developed, it may be appropriate to 22 exercise this discretion to direct an immediate award of benefits. See id. at 682-83. 23 But where there are outstanding issues that must be resolved before a determination 24 of disability can be made or it is not clear from the record that the ALJ would be 25 required to find a claimant disabled if all the evidence were properly evaluated, 26 remand is appropriate. See Garrison, 759 F.3d at 1021 (if “an evaluation of the 27 record as a whole creates serious doubt that a claimant is, in fact, disabled,” a court 28 must remand for further proceedings); Brown-Hunter, 806 F.3d at 495 (“The 8 1 touchstone for an award of benefits is the existence of a disability, not the agency’s 2 legal error.”). 3 In this case, there are outstanding issues that must be resolved before a final 4 determination can be made. The record raises crucial questions as to how Plaintiff’s 5 impairments and limitations affect her RFC, given the ALJ’s failure to properly 6 evaluate Dr. Ho’s opinion. See Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 7 2015) (“it is up to the ALJ, not the court, to determine how [a claimant’s] 8 impairments affect the formulation of [her] RFC”). Because the record is not fully 9 developed and Plaintiff’s entitlement to benefits remains unclear, remand for further 10 administrative proceedings would be useful. See Garrison, 759 F.3d at 1020. On 11 remand, the ALJ should conduct a review of the entire record in a manner that is 12 consistent with the Court’s findings.2 13 IT IS ORDERED. 14 15 DATED: November 19, 2018 16 ___________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2 Because this matter is being remanded for further consideration of Dr. Ho’s opinion, the Court declines to reach any remaining issues raised by Plaintiff. However, the ALJ should consider Plaintiff’s additional contentions of error when evaluating the evidence on remand. 9
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