UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
April 15, 2011
TIEN NGUYET TANG HUYNH, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Robert N. Block United States Magistrate Judge
ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS
The Court now rules as follows with respect to the two disputed issues listed in the Joint Stipulation.*fn1
1. The Court is unable to affirm the adverse credibility determination by the Administrative Law Judge ("ALJ").
The first disputed issue is directed to the ALJ's rejection of plaintiff's As the Court advised the parties in its Case Management Order, the subjective symptom testimony.
As a preliminary matter, the Court notes that it is unclear from the Commissioner's portion of the Joint Stipulation whether the Commissioner is applying the correct standard of review to the ALJ's adverse credibility determination. The law is well established in the Ninth Circuit that, where the claimant has produced objective medical evidence of an impairment or impairments that could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See, e.g., Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991); Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986).
Here, after summarizing plaintiff's subjective symptoms, the ALJ expressly found as follows: "After considering the evidence of record, I find that the claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms." (See AR 17.) Since the ALJ did not find that the record here contained any affirmative evidence of malingering, the issue before the Court is whether the ALJ provided reasons for his adverse credibility determination that satisfy the "clear and convincing" standard set forth above.
The Commissioner disputes that plaintiff's declination of chemotherapy for her cancer was the basis for the ALJ's credibility finding, calling that contention a "red herring" based on the evidence of record that plaintiff had not tested positive of cancer since her December 2003 surgery, and that her surgeon and oncologist had opined that she did not have any functional limitations from her cancer that lasted or were expected to last for 12 months or more. (See Jt Stip at 5.) However, the ALJ did state, "In summary, the claimant is not fully credible, primarily because she refuses several treatment options." (See AR 19 (emphasis added).) The treatment options to which the ALJ was referring were (a) a hysterectomy to address plaintiff's uterine fibroids, and (b) chemotherapy for her cancer. (See AR 18.) Based on the same evidence cited by the Commissioner in support of his "red herring" contention, the Court finds that, insofar as the ALJ was referring to plaintiff's declination of chemotherapy, the ALJ's "primary" reason for not crediting plaintiff's subjective testimony does not satisfy the "clear and convincing" standard. As for plaintiff's declination of the hysterectomy recommendation, the Court notes that the same medical records cited by the ALJ regarding this issue evidence that the reason for plaintiff's declination was that her oncologist had recommended against the surgery. (See AR 665, 666.) Accordingly, the Court further finds that, insofar as the ALJ was referring to plaintiff's declination of the hysterectomy recommendation, the ALJ's "primary" reason for not crediting plaintiff's subjective testimony also does not satisfy the "clear and convincing" standard.
To the extent that the ALJ was basing his adverse credibility determination on plaintiff's testimony regarding her daily activities (see AR 17), the Court notes that "the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability. One does not need to be 'utterly incapacitated' in order to be disabled." Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001): see also, e.g., Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) ("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."). The Ninth Circuit also has held that daily activities may not be relied upon to support an adverse credibility determination unless the ALJ makes an explicit finding to the effect that plaintiff's ability to perform those activities translated into the ability to perform appropriate work activities on an ongoing and daily basis. See Gonzalez v. Sullivan, 914 F.3d 1197, 1201 (9th Cir. 1990). Here, the ALJ made no such explicit finding. Moreover, as the ALJ acknowledged, plaintiff also testified that, if she has a "bad day," she has to rest for about an hour and a half before going back to her chores, and she estimated that she has three or four "bad days" per week. (See AR 17, 47, 49.) Thus, even if the ALJ had made an explicit finding that plaintiff's ability to perform daily activities translated into the ability to perform appropriate work activities on an ongoing and daily basis, the Court would have been compelled to find that such finding was not supported by plaintiff's testimony. For the foregoing reasons, the Court finds that plaintiff's testimony about her daily activities does not constitute a "clear and convincing" reason for rejecting her subjective symptom testimony.
For the reasons stated by plaintiff (see Jt Stip at 12-13), the Court finds that plaintiff's abbreviated testimony about applying for jobs also does not constitute a "clear and convincing" reason for rejecting her subjective symptom testimony.
Further, the Court concurs with plaintiff that the fact she managed to go on a two-day Mexican cruise also does not constitute a "clear and convincing" reason for rejecting her subjective symptom testimony.
Finally, it is inexplicable to the Court why, with knowledge that just a couple of months earlier one of plaintiff's treating physicians had opined that systemic lupus erythematosus (SLE) needed to be ruled out and that plaintiff had an upcoming appointment with a rheumatologist (see AR 15), the ALJ rejected plaintiff's subjective symptom testimony without waiting for the results of the rheumatology examination. The law is well established in this Circuit that the ALJ has a special duty in social security cases "to fully and fairly develop the record and to assure the claimant's interests are considered." Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). "This duty exists even when the claimant is represented by counsel." Id. The ALJ's failure to fulfill this duty here is another reason why the Court is unable to affirm the ALJ's adverse credibility determination.
2. The Court is unable to affirm the ALJ's rejection of the opinions of Drs. Li and Hu.
The second disputed issue is directed to the ALJ rejection of the opinions of two of plaintiff's physicians, Drs. Li and Hu.
As the ALJ acknowledged, if the opinion of Dr. Li, as reflected on the medical questionnaire form that Dr. Li completed on August 4, 2008 (see AR 688-91), were credited, plaintiff would be unable to work full time and would be unable to perform her past relevant work. (See AR 18.) The ALJ's stated rationale for not according Dr. Li's opinion "enhanced weight" was that he had only found documentation in the medical records that Dr. Li had once written a prescription for plaintiff (citing AR 234), and no evidence that Dr. Li had ever examined her; that Dr. Li's assessment therefore was "apparently" based on her review of the medical record; and that the ALJ accordingly found that Dr. Li had failed to "demonstrate such an intimate familiarity with the claimant that her opinion would be entitled to enhanced weight." (See id.) The ALJ also gave as a reason for not accepting Dr. Li's opinion that Dr. Li had relied on a condition (right breast pain) which the ALJ found was not established as a medically determinable impairment.
The Court's review of the medical record reveals that the ALJ overlooked the following medical records: an examination report signed by Dr. Li on October 13, 2006, the same date as the prescription cited by the ALJ (see AR 235); another examination report signed by Dr. Li on October 27, 2006 (see AR 230); another prescription signed by Dr. Li on October 27, 2006 (see AR 226); another examination report signed by Dr. Li on April 27, 2007 (see AR 590); and a referral to LAC-USC Medical Center signed by Dr. Li on April 27, 2007 (see AR 591). In light of these additional records evidencing that Dr. Li indeed had examined plaintiff and contradicting the ALJ's conclusion that Dr. Li's assessment was based solely on her review of the medical record, the Court is compelled to find that the ALJ erred in his consideration of Dr. Li's opinion.
The ALJ did not question Dr. Hu's status as a treating physician. Moreover, the ALJ acknowledged that, if the opinion of Dr. Hu, as reflected on the medical questionnaire form that Dr. Li completed on July 16, 2008 (see AR 684-87), were credited, plaintiff could work full time, but could not perform the sitting customarily required by her past relevant work. (See AR 18.) Thus, the ALJ's determination that plaintiff was not disabled at Step four of the Commissioner's sequential evaluation process was predicated on the ALJ's rejection of Dr. Hu's July 16, 2008 opinion.
The law is well established in the Ninth Circuit that a treating physician's opinions are entitled to special weight because a treating physician is employed to cure and has a greater opportunity to know and observe the patient as an individual. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). "The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for "clear and convincing" reasons. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996); Baxter v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991). Where the treating physician's opinion is controverted, it may be rejected only if the ALJ makes findings setting forth specific and legitimate reasons that are based on the substantial evidence of record. See, e.g., Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) ("A treating physician's opinion on disability, even if controverted, can be rejected only with specific and legitimate reasons supported by substantial evidence in the record."); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987).
Here, the ALJ's stated rationale for not accepting Dr. Hu's opinion was that it was inconsistent with his clinical notes, and specifically (a) Dr. Hu's statement on October 3, 2006 that, with respect to her history of breast cancer and ovarian cysts, plaintiff was "currently asymptomatic," and (b) Dr. Hu's description of plaintiff on January 23, 2007 as well nourished and developed, and in no acute distress. (See AR 18, 427, 429.) *fn2
The Court concurs with the Commissioner that a contradiction between a treating physician's opinion and his treatment notes constitutes a specific and legitimate reason for rejecting the treating physician's opinion. See, e.g., Valentine v. Comm'r of Social Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (contradiction between treating physician's assessment and clinical notes justifies rejection of assessment); Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) (holding that contradiction between doctor's treatment notes and finding of disability was valid reason to reject treating physician's opinion). However, given the ALJ's finding that plaintiff suffered from multiple medically determinable impairments that were not limited to her history of left breast cancer and ovarian cysts (see AR 14-15) and the ALJ's further finding that plaintiff's medically determinable impairments could reasonably be expected to produce her alleged subjective symptoms (see AR 17), the Court finds that there was no contradiction between Dr. Hu's October 3, 2006 statement and his July 16, 2008 opinion as to plaintiff's functional limitations. Further, the Court finds that the fact that plaintiff presented on January 23, 2007 as well nourished and developed, and in no acute distress, does not constitute a specific and legitimate reason for rejecting Dr. Hu's July 16, 2008 opinion as to plaintiff's functional limitations.
CONCLUSION AND ORDER
The law is well established that the decision whether to remand for further proceedings or simply to award benefits is within the discretion of the Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister, 888 F.2d at 603; Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is warranted where additional administrative proceedings could remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where no useful purpose would be served by further administrative proceedings, Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985).
Weighing in favor of a remand for further administrative proceedings here is the fact that this is not an instance where no useful purpose would be served by further administrative proceedings. Rather, additional administrative proceedings conceivably could remedy the defects in the ALJ's decision.
The Court is mindful of Ninth Circuit case authority holding that "the 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." See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); see also, e.g., Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ; Smolen, 80 F.3d at 1292; Varney v. Secretary of Health & Human *fn3 Servs., 859 F.2d 1396, 1399-1401 (9th Cir. 1988). Under the foregoing case authority, when this test is met, the Court will take the improperly discredited testimony as true and not remand solely to allow the ALJ another opportunity to make specific findings regarding that testimony. This rule applies not only to a claimant's improperly discredited excess pain and other subjective symptom testimony, but also to lay witnesses' improperly discredited testimony, and to improperly discredited opinions of a treating or examining physician. However, in Connett, 340 F.3d at 876, the panel held that the "crediting as true" doctrine was not mandatory in the Ninth Circuit. There, the Ninth Circuit remanded for reconsideration of the claimant's credibility where the record contained insufficient findings as to whether the claimant's testimony should be credited as true. See id.
Based on its review and consideration of the entire record, the Court has concluded on balance that a remand for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g) is warranted here. Accordingly, IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings.*fn4