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Cota v. Commissioner of Social Security


January 12, 2010


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


(DOC. 21)


Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the Magistrate Judge to conduct all proceedings in this matter, including ordering the entry of final judgment.*fn1 Pending before the Court is Defendant's motion for relief, filed on April 13, 2009, from the judgment previously filed in this matter on March 31, 2009. Plaintiff filed opposition, and Defendant filed a reply.

By decision and order dated March 31, 2009, the Court determined that remand to the agency was required because the ALJ had made errors in the course of findings concerning the medical opinion of treating physician Dr. Berry and the credibility of the claimant.

I. Legal Standards

Fed. R. Civ. P. 59(e) provides:

A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.*fn2 A motion to amend a judgment under rule 59(e) is granted in a district court's discretion upon the following grounds: 1) the motion is necessary to correct manifest errors of law or fact upon which the judgment is based; 2) the moving party presents newly discovered or previously unavailable evidence; 3) the motion is necessary to prevent manifest injustice; or 4) there is an intervening change in controlling law. Turner v. Burlington Northern Santa Fe R. Co., 338 F.3d 1058, 1063 (9 th Cir. 2003). The remedy provided is extraordinary and is to be used sparingly in the interests of finality and conservation of judicial resources. Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9 th Cir. 2000). With respect to errors of law or fact, clear error is required. Id. Such a motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation. Id.

II. Credibility Findings

Defendant challenges the Court's conclusion that substantial evidence did not support the ALJ's finding that Plaintiff was only partially credible, arguing that the Court did not review the finding and record under the proper standard of review. Defendant argues that the Court overlooked evidence that supported the ALJ's conclusions and focused primarily on evidence that could support a finding of disability. Defendant asserts that because the evidence supported more than one rational interpretation, the Court manifestly erred.

Defendant cites to page fourteen, lines nineteen through twenty-six of the decision. The Court determined in substance that although there was evidence that Plaintiff occasionally could perform the stated activities of daily living, substantial evidence did not support the ALJ's implicit conclusion that such evidence was inconsistent with Plaintiff's claimed limitations, which Plaintiff asserted precluded her from spending a substantial portion of her day engaged in work activities or activities transferable to a work setting.

Defendant cites to page twenty-one, lines twelve through nineteen of the decision. The Court determined in substance that although there was a report that pain medication had helped Plaintiff at one point (A.R. 194, March 2006), additional evidence in the record covering an extended period reflected continued complaints of significant pain and need for adjustment of medications; thus, the reasoning concerning Plaintiff's pain medication being relatively effective in controlling her symptoms was not clear and convincing. (See, e.g., A.R. 205 [April 2005, complaints of pain all over, report that pain medications did not help symptoms]; A.R. 202-03 [May 2005, body aches all over, report that pills only worked for a while and the pain did not resolve, complaint of severe pain in the shoulders, arms, legs, and neck]; A.R. 199 [June 2005, complaint of joint pain despite Tylenol No. 3 (i.e., Tylenol with Codeine)]; A.R. 152 [June 2005, complaints of constant body pain and pain in the joints, neck, and low back]; A.R. 197 [July 2005, complaint of pain all over the body]; A.R. 195 [January 2006, complaints of generalized body aches and pains]; A.R. 193 [April 2006, complaint of arthralgias]; A.R. 191 [September 2006, frequent headaches]; A.R. 190 [September 2006, severe pain]; A.R. 186 [March 2007, arthralgias].)

Defendant cites to page sixteen, lines nineteen through twenty-one. The Court reviewed the evidence, which reflected that Plaintiff persistently and often sought treatment.

Defendant cites to page eighteen, lines ten through eleven. The Court essentially concluded that given the fact that atrophy or loss of strength was not shown to have been associated with fibromyalgia, the ALJ's reliance on the absence of muscle atrophy or loss of strength as a basis for rejecting her claim of fatigue or weakness due to fibromyalgia was not clear and convincing.

Defendant cites to page 22, lines seven through eight. The ALJ had concluded that there was no evidence of sleep deprivation due to pain. The Court stated that there was mixed support for that reason but noted that Plaintiff had reported that she had severe pain and tossed and turned at night. The Court essentially concluded that the statement that there was no evidence of sleep deprivation due to pain was not supported by the record.*fn3

In engaging in the foregoing analysis, the Court used the appropriate standard of review. The Court did not overlook the evidence that supported the ALJ's findings; instead, the Court looked at the totality of the evidence and evaluated it pursuant to the correct standards.

III. Dr. Berry's Opinion

A. Credibility Findings

The ALJ's credibility findings relied in part on the assertion that none of Plaintiff's physicians had opined that she was totally and permanently disabled from any kind of work. (A.R. 20.) In the decision, the Court addressed that reasoning and noted that Dr. Berry in 2005 had repeatedly indicated that Plaintiff was disabled from her previous, heavy, physical labor; in 2006 and 2007, Dr. Berry had indicated that Plaintiff was unable to work due to fibromyalgia. (Decision and Order, p. 22, l. 14 through p. 23, l. 3.) The Court concluded that in view of the consistency of Dr. Berry's determinations concerning Plaintiff's inability to work with Plaintiff's subjective complaints, the ALJ's reasoning was not of clear and convincing force.

The Court concludes that in so doing, the Court applied the appropriate standard of review to the pertinent evidence. The Court thus rejects Defendant's argument that the Court committed clear error with respect to the credibility findings.

B. Evaluation of Dr. Berry's Opinion

In the decision, the ALJ stated: As for the opinion evidence, I give little weight to the opinion of attending physician Martin Berry, M.D., that the claimant is "unable to work" due to pain and fatigue (Exhibits 8F/4; and 10F). By regulation, opinions that the claimant is "disabled" or "unable to work" are not entitled to any special significance, even when offered by a treating source. 20 C.F.R. §§ 404.1527(e)(3), 416.927(e)(3), and (Social Security Ruling 96-5p) (sic). He has failed to give any specific functional limits. Further, the conculsory (sic) opinion is not supported by the substantial evidence of record. (A.R. 20.)

In its motion for relief from judgment, Defendant contends that the Court applied an incorrect standard in evaluating the ALJ's treatment of Dr. Berry's opinion that Plaintiff could not work. This is because the doctor's opinion was essentially limited to the conclusion that Plaintiff could not work, as distinct from an opinion that evaluated Plaintiff's capacities for performing the activities involved in any specific work.

Defendant correctly contends that a "medical opinion" is a statement from an acceptable medical source that reflects a judgment about the nature and severity of impairments, including symptoms, diagnosis, prognosis, what one can still do despite impairments, and physical or mental restrictions. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An opinion on the issue of whether or not an applicant is disabled is an opinion on an issue reserved to the Commissioner because it constitutes an administrative finding that is dispositive of a case. 20 C.F.R. §§ 404.1527(e), 416.927(e). Thus, the opinion of a medical source on the ultimate issue of disability is not conclusive. Magallanes v. Bowen, 881 F.2d 747, 751 (9 th Cir. 1989).

The regulations further provide that in determining whether an applicant meets the statutory definition of disability, the Commissioner will review all the findings and other evidence that supports a medical source's statement that an applicant is disabled. 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1).

Here, review of the Court's decision and order reveals that in evaluating the ALJ's treatment of Dr. Berry's opinions, the Court erroneously employed standards appropriate to medical opinions of treating sources. (Decision and order, p. 29, l. 18 through p. 31, l. 23.) Although Dr. Berry's opinions that Plaintiff could not perform heavy physical labor (A.R. 136, 133) or heavy labor (A.R. 177) come close to constituting medical opinions, Dr. Berry did not consistently use terminology pertinent to analysis of Social Security claims, and he did not specifically define the terms he used to describe Plaintiff's capacities. Thus, the Court declines to interpret his opinions as precluding "heavy work" as it is defined under Social Security regulations.*fn4

Because Dr. Berry's opinion was not a medical opinion, the ALJ's treatment of this non-medical opinion as one reserved to the Commissioner was legally correct. The Court's analysis was clearly erroneous. Accordingly, with respect to that analysis, Defendant is entitled to relief from judgment in the form of reconsideration of the ALJ's treatment of the opinion.

A treating physician's controverted opinion on the ultimate issue of disability may be rejected by an ALJ if the ALJ provides specific and legitimate reasons. Holohan v. Massanari, 246 F.3d 1195, 1202 (9 th Cir. 2001).

The reasoning that Dr. Berry's opinion was conclusory and failed to state specific functional limits, standing alone, could be specific and legitimate. Cf. 20 C.F.R. § 404.1527(d)(3); 20 C.F.R. § 416.927(d)(3) (permitting rejection of a medical opinion because it is conclusional). Generally, the better an explanation a source provides for an opinion, the more weight will be given to the opinion. Id.; see, Morgan v. Commissioner of Social Security 169 F.3d 595, 601 (9 th Cir. 1999); Crane v. Shalala, 76 F.3d 251, 253 (9 th Cir. 1996) (citing Murray v. Heckler, 722 F.2d 499, 501 (9 th Cir. 1983)); Batson v. Commissioner of the Social Security Administration, 359 F.3d 1190, 1195 (9 th Cir. 2004).

However, the record does reflect that Dr. Berry made it clear that it was Plaintiff's subjective symptoms of pain, stiffness, and fatigue, related to his examinations that revealed clinical signs of trigger points reflecting classic fibromyalgia syndrome, that were the basis for his opinions of disability. (A.R. 135-41, 136, 133, 252, 177, 241, 239, 235-36.)

The ALJ reasoned that the opinion was not supported by the substantial evidence of record. (A.R. 20.) As the Court's discussion in the original decision demonstrates, the ALJ was of the view that objective signs other than trigger points were required in order for a fibromyalgia sufferer to suffer severe pain or disabling symptoms from the disease, a proposition that is completely unsupported by the medical record. The ALJ apparently believed that Plaintiff had not followed a proper treatment regimen for disabling fibromyalgia, another proposition unsupported by the medical record. The ALJ filtered all the medical evidence of record through a lens that logically rendered his negative determination a foregone conclusion. The ALJ's misapprehension of the impairment of fibromyalgia prevents this reasoning from being legitimate and supported by substantial evidence. Further, it appears that the ALJ did not review the entire record of Plaintiff's treatment in view of the statements that trigger points were only mentioned once, Plaintiff was only treated infrequently for fibromyalgia, and Plaintiff's medications had been relatively effective in controlling her symptoms.

IV. Remedy for Errors concerning Credibility Findings

Plaintiff argues that Plaintiff's subjective complaints should be credited as true, and the Court should direct immediate payment of benefits.

Where only some of the specific reasons stated by an ALJ for rejecting an applicant's credibility are legally sufficient or supported by the record, but others are not, the Court must consider whether the ALJ's reliance on invalid reasons was harmless error. Batson v. Commissioner of Social Security administration, 359 F.3d 1190, 1195-97 (9 th Cir. 2004). Such errors are harmless and do not warrant reversal where there remains substantial evidence supporting the ALJ's conclusions on credibility, and the error or errors do not negate the validity of the ALJ's ultimate credibility conclusions. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 1155, 1162 (9 th Cir. 2008). The relevant inquiry is not whether the ALJ would have made a different decision absent any error, but rather whether the ALJ's decision remains legally valid despite such error. Id.

Here, the Court has already concluded in its original decision and order that considering the entire record and the nature and extent of the ALJ's errors, the ALJ's errors relating to credibility findings negated the validity of the ALJ's ultimate credibility conclusions. (Decision and order pp. 23-24.) The Court notes that the remaining reasoning related to the ALJ's statement that he incorporated his previous analysis of Plaintiff's nonsevere impairments. (A.R. 19.) In that analysis, the ALJ first had determined that Plaintiff had fibromyalgia manifested by generalized pain, stiffness, fatigue, anxiety, and poor sleep. (A.R. 18.) However, Plaintiff's other impairments were not severe. Plaintiff's hypothyroidism, which Plaintiff testified was controlled to some extent by thyroid medication but caused fatigue, was determined to be stable with appropriate treatment. (A.R. 18.) Plaintiff's osteoarthritis was not shown to have been accompanied by significant clinical signs or symptoms that established a severe impairment. (A.R. 18-19.) Plaintiff's headaches had not been documented as a consistent problem or treated with strong pain medications, and Plaintiff was neurologically intact. (A.R. 19.) Plaintiff's complaints of occasional depression and anxiety were associated with her fibromyalgia, were not accompanied by abnormal mental clinical signs, and had not resulted in a referral for a mental health evaluation. (A.R. 19.)

This analysis related almost exclusively to Plaintiff's other impairments and does not constitute reasoning legally sufficient to support the ALJ's conclusions concerning Plaintiff's subjective complaints relating to her fibromyalgia.

A district court is authorized to affirm, modify, or reverse a decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). The decision whether to remand a matter pursuant to sentence four of § 405(g) or to order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1178 (9 th Cir. 2000). Generally, an award of benefits is directed where no useful purpose would be served by further administrative proceedings, or where the record has been thoroughly developed. Varney v. Secretary of Health and Human Services, 859 F.2d 1396, 1399 (9 th Cir. 1988).

Specifically with respect to testimony concerning subjective symptoms such as those suffered by Plaintiff, a district court should credit evidence that was rejected during the administrative process and remand for an immediate award of benefits if 1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; 2) there are no outstanding issues that must be resolved before a determination of disability can be made; and 3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Benecke v. Barhnart, 379 F.3d 587, 593 (9 th Cir. 2004); Smolen v. Chater, 80 F.3d 1273, 1292 (9 th Cir. 1996).

The Court concludes that in the case before it, remand would serve useful purposes, and thus, the Court will not credit Plaintiff's testimony as true and proceed to order benefits.

It has been recognized that in cases where the testimony of a vocational expert has failed to address a claimant's limitations as established by improperly discredited evidence, it is common to remand for further proceedings rather than order payment of benefits. Harman v. Apfel, 211 F.3d 1172, 1180 (acknowledging that although generally a failure to provide adequate reasons for rejecting the opinion of a treating or examining doctor requires crediting the opinion as a matter of law, where there is an absence of vocational testimony addressing the limitations as established by improperly discredited evidence, remand for further proceedings is appropriate); Swenson v. Sullivan, 876 F.2d 683, 689 (9 th Cir. 1989) (holding in pertinent part that where an ALJ's rejection of subjective complaints of symptoms was not supported by valid reasons, and where there was a dearth of solid, expert vocational testimony concerning the availability of jobs, remand was appropriate for the ALJ to clarify and develop the record).

Here, it is not clear that if the testimony concerning Plaintiff's regularly experienced subjective complaints were credited, Plaintiff would be disabled; rather, the record requires development.

The VE testified that one such as Plaintiff, who had to take unscheduled breaks three to six times per day, for fifteen to thirty minutes each, could not work. (A.R. 279-80.) However, this limitation does not appear to have been anything more than an initial reaction to an adjustment of Plaintiff's medications. Plaintiff testified on January 7, 2008, that she had seen Dr. Berry last on December 31, 2007; at that time he had increased her Gabapentin (Neurontin) to treat body pain that prevented sleep; he also gave her Amitriptyline (Elavil) to help her sleep. These medications caused sleepiness and dizziness, which in turn caused her to lie down for twenty to thirty minutes between eight and ten times during a day. (A.R. 260, 268, 271-73.) It appears that these side-effects were from doses or combinations of doses of medications that Plaintiff had experienced at most one week; it is not clear whether or not these new side-effects were subject to amelioration by further adjustment of or changes to Plaintiff's medications, or whether Plaintiff had even had an opportunity to confer with her treating sources about such side-effects.

Further, Plaintiff's testimony did not include specific data as to her lifting and carrying capacity; she only testified that she could lift a gallon of milk with two hands, and whatever that weight was, it was not expressly presented to the vocational expert. (A.R. 277.) The vocational expert's testimony concerning even the weight requirements of the positions given based on assumptions of light work capacity was inconsistent (A.R. 278, 280 [twenty pounds], 281-82 [twenty-five pounds]), and no figures regarding the availability of positions was given for the capacity to lift lesser amounts, such as ten pounds (A.R. 282). Plaintiff did not testify at all to her carrying capacity. (A.R. 277, 262-82.) Plaintiff's limited ability to walk was not addressed. (A.R. 276.) Thus, this is not a case in which it is clear that if Plaintiff's testimony as to her generally experienced subjective complaints were credited, she would be disabled.

In addition, in view of the problems with the ALJ's evaluation of the medical evidence of record, the matter must be remanded to the ALJ to permit evaluation of the expert opinions in a manner consistent with a legally correct view of Plaintiff's impairment and the pertinent evidence in the record.

A. Duty to Develop the Record

In connection with this aspect of the case, the Court must address an issue raised by Plaintiff that was not reached in the original decision, namely, that the ALJ should have re-contacted Dr. Berry for clarification or further explanation of his opinions that Plaintiff was unable to work rather than rely on the opinions of the non-treating, non-examining state agency reviewing physicians, which had been rendered over two years before the hearing, and which Plaintiff argued were stale.*fn5

There was no treating physician's opinion regarding Plaintiff's specific functional capacities before the ALJ; in determining Plaintiff's residual functional capacity (RFC), the ALJ had essentially adopted the opinions from 2005 of non-examining state agency physicians with the addition of a sit-stand option. The ALJ did not advert to those opinions or explain the decision to include a sit-stand option, which was not the subject of a medical opinion and was in fact inconsistent with the opinions of the state agency physicians, who imposed no such limitations.*fn6 (A.R. 166-75, 178-79.)

The Court is mindful of the difficulty in determining both RFC and the weight to be given subjective complaints presented to an adjudicator by an impairment such as fibromyalgia, which is associated with only limited objective indicia. Further, in the interim, there has been delay in the processing of this case. By the time this case is reheard upon remand, the opinions of the non-examining state agency physicians will be about five years old. Unless further development of the record occurs, Plaintiff will be evaluated on the basis of completely stale information from non-examining sources.

The Court emphasizes that the Social Security Administration is based on an investigatory model; its proceedings are inquisitorial and not adversarial in nature. The ALJ generally is obligated to investigate facts and develop arguments for and against granting benefits. Sims v. Apfel, 530 U.S. 103, 110-11 (2000). The regulations themselves specify that at a disability hearing the ALJ will "look fully into the issues" and that the ALJ "may stop the hearing temporarily and continue it at a later date if he or she believes that there is material evidence missing." 20 C.F.R. §§ 404.944, 416.1444.

In this case, Plaintiff was and may still be receiving treatment by a physician of the appropriate medical specialty. In light of the need for remand and the delays suffered by Plaintiff, and given the investigatory, inquisitorial nature of the proceedings, and further considering the nature of Plaintiff's impairment and the difficulty that the ALJ has already encountered in evaluating Plaintiff's RFC and subjective complaints, the Court concludes that upon remand, the Commissioner should undertake the obvious course and contact Plaintiff's treating physician for an opinion regarding Plaintiff's specific functional capacities, addressing all Plaintiff's exertional and non-exertional limitations.

VI. Obesity

In connection with the request for relief from the judgment, Defendant argues that the Court improperly concluded that the ALJ engaged in reversible error in failing to evaluate Plaintiff's obesity as an impairment. (Def.'s Memo. pp. 4-5.)

In the original decision, the Court mentioned Plaintiff's obesity in the course of determining that the ALJ's reliance on the absence of evidence of weight gain due to pain, as a basis for a negative credibility finding, was not clear and convincing. (Decision and order pp. 21-22.) At the hearing, Plaintiff testified that she was five feet two inches tall and weighed 215 pounds. (A.R. 269.) The Court noted that Plaintiff had been diagnosed as obese in 2007 when she weighed fifteen pounds less, but she had gained weight despite a recommendation to diet when at a lower weight in 2004. Because it is recognized that for most obese people, even active treatment for obesity results in limited effects, Orn v. Astrue, 495 F.3d 625, 636 (9 th Cir. 2007) (citing to Soc. Sec. Ruling 02-1p), and considering the ALJ's failure to address the very pertinent information relating to Plaintiff's specific weight condition in the record, the Court concluded that the ALJ's reasoning was not clear and convincing.

In the decision and order, the Court again referred to Plaintiff's diagnosed obesity out of a concern to avoid errors of omission on remand. (Decision and order pp. 35-36.) The Court noted that the ALJ had not considered "the existence, severity, and functional effects of Plaintiff's documented impairment of obesity," and it cited to legal standards requiring that all an individual's impairments must be considered. (Id. at p. 35.) The Court's use of the term "impairment" was imprecise and technically incorrect because it is for the Commissioner not only to determine the severity and functional effects of an "impairment," but also to determine in the first instance whether or not a diagnosed condition is a medically determinable impairment. 20 C.F.R. §§ 404.1529(b), 416.929(b).

Although the Court did not determine that the ALJ committed reversible error in not addressing Plaintiff's obesity, the Court did instruct the parties that all impairments be addressed upon remand and indicated that Plaintiff's obesity was an impairment.

Accordingly, Defendant is entitled to relief from the direction to consider obesity as an impairment.

Instead of the previous direction, the Court substitutes an admonition that Plaintiff's documented diagnosis of obesity be considered to the extent appropriate on remand.

VII. Disposition

Accordingly, it IS ORDERED that

1) Defendant's motion for relief from the judgment IS GRANTED IN PART AND DENIED IN PART; and

2) Insofar as Defendant requests relief from the judgment with respect to the Court's decision regarding the ALJ's credibility findings, Defendant's motion IS DENIED; and

2) Insofar as Defendant requests relief with respect to the Court's treatment of the opinion of Dr. Berry and the Court's description of Plaintiff's obesity as an impairment, Defendant's motion for relief from the judgment IS GRANTED, and the Court has reconsidered the ALJ's treatment of Dr. Berry's opinion and the Plaintiff's obesity; and

3) Plaintiff's social security complaint IS GRANTED, and

2. The matter IS REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration, consistent with this decision, of Plaintiff's status as disabled, including whether or not Plaintiff a) suffered from a severe impairment or impairments, b) whether Plaintiff could perform her past relevant work, and c) whether on the basis of the Plaintiff's age, education, work experience, and residual functional capacity, she could perform any other gainful and substantial work within the economy; and

3. Judgment BE ENTERED for Plaintiff Rosario Cota, and against Defendant Michael J. Astrue.


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