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Bolden v. Astrue


September 21, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's applications under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. (the "Act").*fn1 In his motion for summary judgment, plaintiff contends that the Administrative Law Judge ("ALJ") erred by: (1) failing to properly credit the opinions of certain physicians; (2) improperly rejecting plaintiff and his third party witness's statements; (3) failing to properly question the vocational expert and credit that expert's testimony; and (4) identifying jobs inconsistent with the dictionary of occupational titles.

(Dkt. No. 18 at 2.) The Commissioner filed an opposition to plaintiff's motion for summary judgment.*fn2 (Dkt. No. 22.)

After careful consideration of the entire record, the arguments presented, and for the reasons stated below, the court will grant plaintiff's request for remand.


A. Procedural Background

On April 29, 2005, plaintiff filed an application for supplemental security income disability benefits alleging disability beginning on June 1, 2001. (Administrative Transcript "AT" 30, 81.) The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 51-62.) Plaintiff filed a timely request for a hearing, and the ALJ conducted a hearing on December 18, 2007. (AT 208-40.) Plaintiff, who was represented by counsel, testified at the hearing. (Id.) Susan Moranda, an impartial vocational expert, also testified at the hearing. (AT 30.)

In a decision dated March 27, 2008, the ALJ denied plaintiff's application for benefits, finding he was not disabled within the meaning of the Social Security Act.*fn3 (AT 27- 43.) Plaintiff filed an appeal with the Appeals Council for the Social Security Administration. The Appeals Council, by order dated January 21, 2009, granted review but rendered an unfavorable decision to plaintiff. (AT 5-10.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 405(g).

B. Summary of Relevant Medical History and Evidence*fn4

In his application for disability benefits, plaintiff claimed that diabetes and high blood pressure limited his ability to work. (AT 75.) Plaintiff previously filed an application for SSI payments on March 24, 2003. (AT 30.) That application was dismissed by order of Administrative Law Judge Robert Ryan. (Id.) At the time of the hearing currently at issue, plaintiff was 33 years old. (AT 42.)

On February 1, 2006, Dr. Joseph M. Garfinkel, M.D., examined plaintiff following his application for benefits. During this internal medicine consultative examination, Dr. Garfinkel issued the following diagnostic impressions:

1. Diabetes mellitus type II, does not cause any disability.

2. Hypertension with very good control, 104/70.

3. Back pain with normal back examination.

Dr. Garfinkel opined that from "an internal medicine standpoint, the claimant is without restriction." (AT 142.)

Plaintiff underwent a psychiatric consultative examination on January 27, 2007 with Dr. Lyle Forehand, M.D. (AT 158.) Following his examination, Dr. Forehand found that plaintiff had a Global Assessment of Functioning ("GAF") score of 51.*fn5 Dr. Forehand opined that plaintiff's "primary issue is one of diabetes and his adjustment to that." (AT 161.) He stated that plaintiff would "likely have interruptions from his psychiatric symptoms during a normal workday or workweek until he better accepts and learns to cope with the diagnosis of his serious physical illness." (AT 162.)

On February 21, 2007, plaintiff received a residual functional capacity ("RFC") assessment from a State agency physician. (AT 173-79.) This medical reviewer concluded that plaintiff had a moderate degree of limitation in maintaining his social functioning and maintaining concentration, persistence or pace. (Id.) He also found that plaintiff was "moderately limited" in his ability to complete a normal workweek without interruption from psychologically based symptoms. (AT 178.)

Plaintiff submitted additional evidence to the Social Security Appeals Council. On January 8, 2008, plaintiff's treating physician, Dr. Gabriel Tanson, M.D., completed a form needed to evaluate plaintiff's eligibility for public assistance. Dr. Tanson checked boxes on that form that stated, inter alia, that plaintiff was unable to work and that he required someone to be in his home to help care for him. (AT 26.)

C. Summary of the Appeals Council's Findings

The Appeals Council granted plaintiff's request for review of the ALJ's denial of benefits. (AT 7.) The Appeals Council ultimately adopted the ALJ's findings and conclusions that the claimant is not disabled, although the Appeals Council issued a slightly modified decision. (AT 8-9.) The Appeals Council amended plaintiff's application date to April 29, 2005 and amended the Medical-Vocational Rule at issue from Rule 203.26 to Rule 202.18. (AT 7-10.) The Appeals Council adopted and incorporated the remaining findings and conclusions of the ALJ into its decision. (AT 8-10.)

The Appeals Council conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. (AT 30-43.) At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since April 29, 2005. (AT 9, 32.) At step two, the Appeals Council concluded that plaintiff had the severe impairments of diabetes mellitus, depression and obesity.*fn6 (Id.) At step three, it determined that plaintiff's impairments did not meet or medically equal one of the impairments listed in the applicable regulations. (AT 9, 33.) The Appeals Council further determined that plaintiff had the RFC to perform medium work, except that he was limited to performing simple, repetitive tasks requiring only occasional public contact. (AT 9, 34.) The Appeals Council also limited plaintiff to only occasionally climbing ladders, balancing, stooping, bending, kneeling, crouching and crawling. (Id.) The Appeals Council further precluded plaintiff from working around heights, moving machinery or hazards. (Id.)

The Appeals Council found, at step four, that plaintiff was unable to perform any past relevant work. (AT 42.) Finally, the Appeals Council found at step five that there are jobs that exist in significant numbers in the national economy that the claimant could perform, considering his age, education, work experience, testimony of the vocational expert and RFC. (AT 42.)


Plaintiff contends that the ALJ committed four principal errors in reviewing plaintiff's claim. (Dkt. No. 18 at 14.) First, plaintiff argues that physician testimony was improperly rejected. Specifically, plaintiff argues (a) that the ALJ erred by failing to credit the opinions of Dr. Forehand and a State agency physician even though the ALJ gave them "significant" weight; and (b) that the Appeals Council improperly rejected plaintiff's treating physician's opinion without a legitimate basis for doing so. (Id.) Second, plaintiff argues that the ALJ rejected plaintiff's third party witness statements without germane and specific reasons for doing so. (Id.) Third, plaintiff argues that the ALJ failed to properly question the vocational examiner ("VE") and to credit that VE's responses to hypothetical questions. (Id.) Fourth, plaintiff argues that the jobs identified by the vocational expert were not consistent with the Dictionary of Occupational Titles. (Id at 14-15.)


The court reviews the Commissioner's decision to determine whether it is (1) free of legal error; and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690 (citing Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence.").

Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)); see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).


A. The Consideration of Physician's Opinions

Plaintiff first contends that the ALJ erred by rejecting the opinions of certain treating and examining physicians and psychologists without legally adequate reasons for doing so. (Dkt. No. 18 at 15.) Plaintiff specifically argues that the ALJ failed to incorporate into plaintiff's RFC the fact that plaintiff would have interruptions in his workweek due to psychologically based symptoms. (AT 38.)

Where a treating or examining physician's opinion is uncontradictedby another doctor, the Commissioner must provide "clear and convincing" reasons for failing to assign controlling weight to the treating physician's ultimate conclusions. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (emphasis added). However, the ALJ need not give weight to conclusory opinions supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).

Plaintiff argues that Dr. Forehand's finding that plaintiff would continue to have interruptions in the workday until he "better accepts and learns to cope with the diagnosis of his serious physical illness," and the State agency physician's opinion that plaintiff was "moderately limited" in his ability to complete a normal workweek without interruptions from psychologically based symptoms should have been incorporated into his RFC.

The ALJ discussed these opinions, stating, inter alia:

Significant weight is given to [Dr. Forehand's] opinion, although I have not incorporated the opinion regarding interruptions in the workday into the residual functional capacity, which was attributed to his "serious physical illness." As discussed below, the claimant's diabetes is well controlled, and his physical condition is essentially stable.

(AT 38.) With respect to the State agency physician, the ALJ also stated that he gave "significant weight to this opinion." (Id.)

Yet in reviewing the ALJ's analysis, despite the assertions of "significant weight," the court finds that the ALJ failed, in contravention of Ninth Circuit law, to defer to the uncontradicted opinions of the treating professionals. Lester, 81 F.3d at 830-31. Although the ALJ provided a thorough and detailed opinion, one which appears to reach an accurate ultimate conclusion, the ALJ's statement that he accorded significant weight to these physician's opinions is inconsistent with the remainder of his findings regarding plaintiff's residual functional capacity.*fn7

As plaintiff contends, the ALJ's statement that he accorded Dr. Forehand's opinion and that of the State agency physician significant weight is misleading and, in the final analysis, at least facially inaccurate. The ALJ did not reference or appear to give significant or any other weight to the portion of Dr. Forehand's or the State agency physician's assessment that plaintiff was facing moderate limitations in his ability to complete a workweek. In the absence of psychological opinions to the contrary, this constitutes error.

The Commissioner counters that even "assuming [p]laintiff's interpretation was accurate, it stands to reason that any psychological ramifications resulting from the diagnosis of the [plaintiff's] disease improved as the physical symptoms grew less problematic, as they did for [p]laintiff." (Dkt. No. 22 at 7.) Although the Commissioner's analysis is reasonable, such speculation about plaintiff's current condition reaches beyond the bounds of the record presented.

Further compounding the erroneous RFC computation is the ALJ's failure to adopt relevant testimony from the VE. The ALJ, despite his statement that he provided significant weight to the aforementioned opinions, did not incorporate plaintiff's limitations in his determination of plaintiff's RFC or in his hypothetical questions to the VE. At the hearing, the VE testified that if moderate limitations were incorporated into plaintiff's RFC, including a workweek with interruptions from psychologically based symptoms, that plaintiff would "not be able to do any of the jobs identified in [the previous] hypothetical." (AT 239.) "In determining a claimant's RFC, an ALJ must consider all relevant evidence in the record, including, inter alia, medical records, lay evidence and 'the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.'" Robbins v. SSA, 466 F.3d 880, 883 (9th Cir. 2006) (citing SSR 96-8p, 20 C.F.R. §§ 404.1545(a)(3)). With the record presented to the ALJ, specific treatment of this testimony was required.

"Hypothetical questions posed to the vocational expert must set out all the limitations and restrictions of the particular claimant . . . 'If the assumptions in the hypothetical are not supported by the record, the opinion of the vocational expert that the claimant has a residual working capacity has no evidentiary value.'" Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (quoting Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)). Instead, the ALJ's hypothetical to the VE was based on an incomplete or inaccurate statement of plaintiff's limitations based on the record presented. Accordingly, the VE's testimony that plaintiff could work as a small parts assembler, fast food worker or general office helper are without evidentiary value based upon the present record. (AT 237-38.)

Moreover, plaintiff's treating physician's opinion, although submitted to and rejected by the Appeals Council, raises further ambiguity about the severity of plaintiff's symptoms and additionally justifies remand for consideration of this evidence along with the remainder of the record as a whole. It may be, upon remand, that the ALJ finds that clear and convincing evidence permits rejection of the plaintiff's treating physician's conclusions about the extent of plaintiff's limitations. Or, upon remand, the Commissioner may deem it necessary to acquire additional testimony or evidence to incorporate into a RFC which accurately reflect's plaintiff's mental limitations, if any.*fn8

Finally, plaintiff claims that the ALJ committed several other errors. However, the undersigned does not address those alleged errors in this order because the nature of the remand ordered herein is of a sort that will likely impact the ALJ's sequential analysis from step two through step five. Moreover, because the remaining claims of error derive, at least in part, from the errors addressed above, the undersigned need not address those alleged errors here.


Based on the foregoing, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment or remand is granted in part.

2. The Commissioner's cross-motion for summary judgment is denied.

3. This matter be remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

4. The Clerk of Court is directed to enter judgment in plaintiff's favor.

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