Opinion
Case No. CV 07-3743 PJW.
October 29, 2008
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying his application for disability insurance benefits. For the reasons discussed below, the Agency's decision is REVERSED and the action is REMANDED for further proceedings consistent with this opinion.
Plaintiff protectively filed an application for disability insurance benefits on March 2, 2005, alleging that he had been disabled since May 29, 2003. (Administrative Record ("AR") 84, 140.) After his application was initially denied, he requested and was granted an administrative hearing. (AR 33.) Plaintiff appeared with counsel at the hearing on June 5, 2006, and testified before an Administrative Law Judge ("ALJ"). (AR 409-48.) On June 26, 2006, the ALJ issued a decision denying the application. (AR 18-27.) Plaintiff appealed to the Appeals Council, which denied Plaintiff's request for review on April 20, 2007. (AR 5.) Plaintiff then commenced this action.
Plaintiff raises two claims of error. He argues first that the ALJ failed to provide clear and convincing reasons for rejecting his allegations of disabling pain. (Joint Stip. at 3-8.) Second, he contends that the ALJ erred in rejecting the treating physician's opinion and relying, instead, on the consulting doctor's opinion. (Joint Stip. at 12-20.) For the following reasons, the Court finds that the ALJ erred on both grounds and orders remand for further proceedings.
Plaintiff claimed that his back, neck, shoulder, ankle, and knee have caused him problems ever since he was hurt at his job in 2003. (AR 108-09.) Plaintiff testified that he had pain "all over" his body all the time. (AR 414.) He explained that Vicodin, which he takes two to four times a day, helped relieve the pain. (AR 415.) According to Plaintiff, he was unable to sit or stand for longer than five or ten minutes and could walk only one or two blocks. (AR 415.) He also testified that he had no strength in his right hand, and that he can use his hands to grip or grasp for no longer than five or ten minutes. (AR 416.) Plaintiff also claimed to use a cane to walk and to balance. (AR 416.)
The ALJ rejected this testimony for four "clear and convincing" reasons:
First, the claimant's allegation[s] of severe pain are inconsistent with the record as a whole and are not supported by the objective medical findings in evidence of record. Second, an MRI of the lumbar spine performed November 11, 2005, revealed mild spinal canal narrowing and spinal neuralforaminal encroachment of the L5 exiting nerve root, same at L5-S1 nerve root (Exhibit 12F, page 88). Third, the claimant has not alleged an inability to provide his own personal care. Fourth, there is no evidence the claimant has undergone regular treatment or therapy consistent with the severity of his complaints for any period of twelve or more continuous months, which could be reasonably expected from [someone] suffering unrelenting pain, debilitating symptoms, and severe functional limitations such as those alleged by the claimant.
(AR 24-25.)
Though the ALJ did not note this, it is obvious from his decision that he found that Plaintiff's severe impairments (carpal tunnel syndrome, cervical and thoracic sprain, right knee meniscus tears, and right shoulder tendinitis) could produce some pain. (AR 431-32.) The ALJ did not find that Plaintiff was a malingerer, nor is there any affirmative evidence that he was. (AR 431.) Thus, the ALJ could reject Plaintiff's pain testimony only for specific, clear, and convincing reasons. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)).
The Court notes that the standard the ALJ applied — "clear and convincing" — is not quite right. The reasons must also be specific. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) ("[T]he ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear, and convincing reasons for doing so.'" (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)).
The ALJ's first reason for rejecting Plaintiff's testimony was that it was "inconsistent with the record as a whole and was not supported by the objective medical findings in evidence of record." (AR 25.) This reason is not specific, clear, or convincing. It could apply to any social security case. The parties and the Court have no guidance as to what, specifically, the ALJ was referring to in this 431-page record. In fact, it appears to the Court that most of the medical records — which mostly come from Plaintiff's treating physician — support Plaintiff's testimony. Further, having accepted that Plaintiff had produced objective medical evidence that his condition might cause some pain, the ALJ could not then reject those allegations of pain on the ground that they were unsupported by the medical evidence. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006) (noting that the ALJ's justification that claimant's testimony was not consistent with or supported by the overall medical evidence of record was "exactly the type we have previously recognized the regulations prohibit") (citing Social Security Ruling ("SSR") 96-7p; Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)). For this reason, this justification is rejected.
The ALJ's second reason for questioning Plaintiff's credibility was that a November 11, 2005, MRI of Plaintiff's lumbar spine "revealed mild spinal canal narrowing and spinal neuroforaminal encroachment of the L5 exiting root, same at L5-S1 nerve root." (AR 25.) The ALJ did not explain why this MRI undermined Plaintiff's testimony and the Court is not sure. Perhaps, it is because the narrowing of the spinal canal was described as mild. But the ALJ did not explain this and the Court has no independent basis for finding that a mild narrowing of a spinal canal would not cause pain. Indeed, in the Court's view, the MRI provides objective evidence that Plaintiff suffers from a condition that is reasonably likely to produce some pain. Without further explanation, the ALJ's reference to the MRI cannot serve as a clear and convincing reason for rejecting Plaintiff's credibility.
The third reason cited by the ALJ was that Plaintiff had not "alleged an inability to provide his own personal care." (AR 25). A disability claimant, however, need not be incapacitated to qualify for benefits. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) ("The Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits, and many home activities are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication") (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). Assuming that the ALJ's point was to contrast Plaintiff's claimed limitations with his daily activities, the ALJ failed to make any findings to demonstrate that the two were inconsistent. C.f. Fair, 885 F.2d at 603 (noting allegation of disabling pain may be discredited by specific finding that claimant "is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting"). Thus, the ALJ's third reason does not support a finding that Plaintiff was not credible.
The ALJ's fourth reason for finding Plaintiff not credible was that there was no evidence that Plaintiff had undergone "regular treatment or therapy consistent with the severity of his complaints." (AR 25.) This is not supported by the record.
An unexplained or inadequately explained failure to seek treatment or follow a prescribed course of treatment is a relevant factor in assessing pain testimony. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (holding claimant's allegation that she "experienced pain approaching the highest level imaginable" was inconsistent with minimal conservative treatment she received); see also Flaten v. Sec. of Health and Human Servs., 44 F.3d 1453, 1464 (9th Cir. 1995) (holding ALJ entitled to draw inference from general lack of medical care over period of several years). Here, however, it is not clear that Plaintiff failed to obtain appropriate treatment or therapy. The medical expert, Dr. Michael Gurvey, testified that Plaintiff had been treated "appropriately" and that Plaintiff had been compliant with his doctor's instructions. (AR 430-31.) The ALJ did not make any finding that Plaintiff's treatment was minimal or conservative. In fact, the record shows that, among other things, Plaintiff received epidural injections in his back and surgery on his right knee and wrist. (AR 210, 237-38, 383.) Thus, it appears that Plaintiff's treatment was appropriate for his condition and that he did not fail to undergo treatment recommended by his doctor. For this reason, this justification for rejecting Plaintiff's credibility is overruled.
Having concluded that all four of the ALJ's reasons for rejecting Plaintiff's credibility are not adequate, the Court next turns to the issue of what is the appropriate remedy. Plaintiff argues that, under Lingenfelter, the Court is required to send the case back to the Agency for an award of benefits. Though Lingenfelter can be read to imply that the district court is required to remand for an award of benefits where, as here, the ALJ has failed to provide proper reasons for rejecting the claimant's testimony, 504 F.3d at 1041, other Ninth Circuit authority holds that the Court has the discretion to remand for further proceedings. See, e.g., Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (reviewing apparent conflict among Ninth Circuit cases on this issue and holding that district court has discretion to remand for further proceedings where ALJ's credibility finding is in error). If there is an explanation for these apparently inconsistent lines of cases, it would seem that the courts have drawn a distinction for those cases where it was clear that the claimant was entitled to benefits and those in which it was not so clear. The case at bar falls into the latter category and, therefore, remand is appropriate.
Plaintiff's second claim of error is that the ALJ failed to give appropriate weight to the opinion of Plaintiff's treating physician, Dr. William J. Mealer. (Joint Stip. at 12-20.) This claim also requires remand.
The record reveals that Dr. Mealer, a board-certified orthopedist, first examined Plaintiff on July 2, 2003. (AR 303-12.) Dr. Mealer diagnosed Plaintiff with cervical, lumbosacral, abdominal, and ankle sprains, and recommended that MRI scans be performed. (AR 309-10.) Dr. Mealer saw Plaintiff ten more times between August 2003, and October 2004. (AR 316-76.) On October 25, 2004, Dr. Mealer opined that Plaintiff was unable to continue his work as a welder because he had lost 50 percent of his pre-injury functional capacity and could not work above shoulder level. (AR 372-74.)
Dr. Mealer prepared a report in February 2005, concluding in it that Plaintiff sustained significant injuries to his neck, lower back, right shoulder, right abdomen, right knee, ankles, and right wrist, causing him to be a candidate for right knee arthroscopy and right carpal tunnel release. (AR 223-24.) In June 2006, Dr. Mealer completed a physical residual functional capacity questionnaire in which he reported that he saw Plaintiff on a monthly basis; that Plaintiff's prognosis was not good; that Plaintiff was in constant pain that was mostly severe; and that Plaintiff had a significantly reduced range of motion in his lower back and shoulders. (AR 395-401.) He assessed functional restrictions consistent with Plaintiff's administrative hearing testimony. (AR 395-401.) Dr. Mealer concluded that Plaintiff was temporarily totally disabled. (AR 400.)
The ALJ rejected Dr. Mealer's opinion regarding Plaintiff's limitations for four reasons: 1) the restrictions assessed by Dr. Mealer in the 2006 questionnaire were inconsistent with the restrictions assessed by Dr. Mealer in the 2004 report; 2) Dr. Mealer's opinion was not supported by the totality of the medical evidence or Dr. Mealer's progress notes; 3) Dr. Mealer's testimony was inconsistent with the testimony of the non-examining, non-treating medical expert; and 4) Dr. Mealer included in his report that Plaintiff was disabled, which the ALJ noted was a decision reserved to the Agency. (AR 24.) Plaintiff claims this was error. For the reasons explained below, the Court agrees.
It is well-established that, "[b]y rule, the Social Security Administration favors the opinion of a treating physician over non-treating physicians." Orn, 495 F.3d at 631; see also Aukland v. Massanari, 257 F.3d 1033, 1037 (9th Cir. 2001); Smolen, 80 F.3d at 1285. A treating physician's opinion as to the nature and severity of an impairment must be given controlling weight if the opinion is well supported and not inconsistent with other substantial evidence. SSR 96-2p; Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001).
Even where a treating physician's opinion is not to be given controlling weight because it is not "well-supported" or because it is inconsistent with other substantial evidence in the record, an ALJ must still consider various factors — including the length, nature, and extent of the treatment relationship; the amount of relevant evidence that supports the opinion; the consistency of the medical opinion with the record as a whole; and the speciality of the physician providing the opinion — in determining what weight to give it. Orn, 495 F.3d at 631 (citing 20 C.F.R. § 404.1527 and SSR 96-2p). Where the treating physician's opinion is contradicted by a non-treating physician's opinion, the ALJ must provide specific and legitimate reasons, supported by substantial evidence in the record, for rejecting the treating doctor's opinion. Id. at 632 (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996)). Where, however, the non-treating physician is a consulting doctor who never examined the claimant and relies on the same clinical findings as the treating physician to arrive at the opposite conclusion as the treating physician, the consulting doctor's opinion does not amount to substantial evidence. Id.
The first reason provided by the ALJ for rejecting Dr. Mealer's opinion was that Dr. Mealer found Plaintiff to be significantly more restricted in a 2006 report than he did in a 2004 report. (AR 24.) In the 2004 report, Dr. Mealer noted that Plaintiff's subjective complaints were consistent with varying degrees of pain, from slight to moderate, that was largely intermittent. (AR 369.) Dr. Mealer determined that Plaintiff's capacity to perform various activities was reduced by approximately 50 percent. (AR 372.) Dr. Mealer also determined that Plaintiff was unable to perform his usual work. (AR 374.) Approximately 16 months later, in a 2006 report, Dr. Mealer reported that Plaintiff was in constant pain and that he was substantially more restricted. (AR 396, 398, 400.)
The ALJ concluded that because Dr. Mealer's two reports were different, Dr. Mealer's opinion was entitled to little or no weight. The ALJ failed to discuss, however, how Plaintiff's condition had changed during this period. Dr. Mealer's progress notes, which the ALJ also did not address, show, for example, that, although Plaintiff had a period of improvement after knee surgery in 2005, he complained of a "lot of pain" in July 2005, and increased pain in his lower back in October 2005. (AR 275-81.) On December 1, 2005, Plaintiff complained of "a lot of pain all over his body," which caused Dr. Mealer to note that Plaintiff needed a referral for an injection "ASAP." (AR 273.)
On this record, the Court cannot conclude that the fact that the restrictions in Dr. Mealer's 2004 and 2006 reports were different undermines Dr. Mealer's credibility. See Orn, 495 F.3d at 634 ("Consistency does not require similarity in findings over time despite a claimant's evolving medical status.") Thus, this reason is rejected.
The ALJ's second reason for discounting Dr. Mealer's opinion was that it was not supported by the totality of the medical evidence or his own progress notes. (AR 24.) Like the ALJ's reliance on generalizations to discount Plaintiff's credibility, the use of generalizations here is equally unpersuasive. The Court does not know what the ALJ was referring to when he concluded that Dr. Mealer's opinion was not supported by the totality of the medical evidence. Most of the treating records are from Dr. Mealer. (AR 270-402.) They seem to support his notions concerning Plaintiff's condition. The ALJ has not cited a single reference in the record that contradicts Dr. Mealer's opinion. As such, this reason for rejecting Dr. Mealer's opinion is rejected.
The third reason the ALJ provided for concluding that Dr. Mealer's opinion was not entitled to any weight was that Dr. Mealer's opinion was inconsistent with the opinion of the consulting doctor, Dr. Gurvey. (AR 24.) Dr. Gurvey's opinion, however, was based primarily on Dr. Mealer's work. Dr. Gurvey did not examine Plaintiff or perform any tests on him. He merely read the medical record, the majority of which came from Dr. Mealer, and offered an opinion that was different than Dr. Mealer's. This is not enough to overcome the presumption that Dr. Mealer's opinion was entitled to deference. Orn, 495 F.3d at 633. Thus, in this case, Dr. Gurvey's conclusions alone could not constitute substantial evidence to support the ALJ's rejection of Dr. Mealer's opinion. Id.
The final reason why the ALJ rejected Dr. Mealer's opinion was that Dr. Mealer had concluded that Plaintiff was disabled. (AR 400.) The ALJ found that this was an issue reserved for the Agency. (AR 24.) Though it is true that the ultimate decision of whether a claimant is disabled is reserved to the Agency, the fact that a doctor renders an opinion on the issue does not mean that his entire work should be disregarded. Especially here, where the opinion was offered to an insurance company in connection with a worker's compensation claim, and where, presumably, the insurance company wanted the doctor to offer an opinion on the issue of disability. In any case, the ALJ should have simply rejected or ignored the disability opinion and looked to Dr. Mealer's other opinions in determining whether Plaintiff was disabled. For these reasons, this justification is also rejected.
Because the ALJ erred in his assessment of Plaintiff's credibility and Dr. Mealer's opinion, the decision is reversed and the case is remanded for further proceedings.
IT IS SO ORDERED.