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Hicks v. Colvin

United States District Court, C.D. California, Western Division

April 9, 2015

GWENDOLYN D. HICKS, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

MEMORANDUM OPINION AND ORDER

PAUL L. ABRAMS, Magistrate Judge.

I.

PROCEEDINGS

Plaintiff filed this action on December 26, 2013, seeking review of the Commissioner's denial of her application for Disability Insurance Benefits ("DIB"). The parties filed Consents to proceed before the undersigned Magistrate Judge on January 16, 2014, and January 30, 2014. Pursuant to the Court's Order, the parties filed a Joint Stipulation on March 11, 2015, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.

II.

BACKGROUND

Plaintiff was born on May 28, 1963. [Administrative Record ("AR") at 204.] She has past relevant work experience as, among other things, a home attendant, medical record clerk, and teacher's aide II. [AR at 99, 993-94.]

On October 28, 2008, plaintiff filed an application for a period of disability and DIB, alleging that she has been unable to work since July 31, 2008. [AR at 86, 204-10.] After her application was denied initially and upon reconsideration, plaintiff timely filed a request for a hearing before an Administrative Law Judge ("ALJ"). [AR at 62, 122-23.] A hearing was held on September 1, 2010, at which time plaintiff appeared represented by an attorney, and testified on her own behalf. [AR at 9-54, 62.] A vocational expert ("VE"), and plaintiff's husband, Harold Hicks, also testified. [AR at 30-53.] On October 20, 2010, the ALJ issued a decision concluding that plaintiff was not under a disability from July 31, 2008, the alleged onset date, through October 20, 2010, the date of the decision. [AR at 62-71.] Plaintiff requested review of the ALJ's decision by the Appeals Council. [AR at 157-59.]

On November 10, 2011, the Appeals Council granted the request for review "under the substantial evidence provision" of the regulations, and issued a remand order vacating the hearing decision. [AR at 76-80.] The Appeals Council ordered the ALJ on remand to: (1) "[o]btain additional evidence concerning [plaintiff's] impairments in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence"; (2) "[f]urther evaluate [plaintiff]'s mental impairments, without consideration of Dr. Yang's report at Exhibit 4F... by providing specific findings and appropriate rationale for each of the functional areas"; (3) "[f]urther evaluate [plaintiff]'s subjective complaints and provide rationale in accordance with the disability regulations"; (4) "[g]ive further consideration to [plaintiff]'s maximum residual functional capacity during the entire period at issue... and explain the weight given to [medical source] opinion evidence"; and (5) "[i]f warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of [plaintiff]'s limitations on [her] ability to perform any past relevant work." [AR at 78-79.]

On May 16, 2012, another hearing was held before the same ALJ, at which time plaintiff again appeared represented by an attorney. [AR at 983-1002.] A different VE and a mental health expert testified, and an additional sixteen exhibits were made a part of the record. [AR at 598-982, 987-1002.] On July 10, 2012, the ALJ issued a decision concluding that plaintiff was not under a disability from July 31, 2008, the alleged onset date, through July 10, 2012, the date of the decision. [AR at 85-101.] Plaintiff requested review of the ALJ's decision by the Appeals Council. [AR at 7.] When the Appeals Council denied plaintiff's request for review on October 28, 2013 [AR at 1-5], the ALJ's decision became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). This action followed.

III.

STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).

"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." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) (citation and internal quotation marks omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (same). When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citation omitted); see Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.") (citation and internal quotation marks omitted). "Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld." Ryan, 528 F.3d at 1198 (citation and internal quotation marks omitted); see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) ("If the evidence can support either affirming or reversing the ALJ's conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.") (citation omitted).

IV.

THE EVALUATION OF DISABILITY

Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

A. THE FIVE-STEP EVALUATION PROCESS

The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id . If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id . If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id . If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id . The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case of disability is established. Id . The Commissioner then bears the burden of establishing that the claimant is not disabled, because she can perform other substantial gainful work available in the national economy. Id . The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS

At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since July 31, 2008, the alleged onset date.[1] [AR at 88.] At step two, the ALJ concluded that plaintiff has the severe impairments of rheumatoid arthritis, fibromyalgia, obesity, carpal tunnel syndrome, panic disorder with agoraphobia, depressive disorder, and anxiety state, unspecified. [Id.] At step three, the ALJ determined that plaintiff does not have an impairment or a combination of impairments that meets or medically equals any of the impairments in the Listings. [AR at 89.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC")[2] to perform light work as defined in 20 C.F.R. § 404.1567(b), [3] except as follows:

[Plaintiff] can frequently use her hands. She must avoid heights and hazards. In addition, [plaintiff] can perform simple work. [Plaintiff] must have no public contact and can have occasional contact with peers and supervisors.

[AR at 92.] At step four, based on plaintiff's RFC and the testimony of the VE, the ALJ concluded that plaintiff is unable to perform her past relevant work as a home attendant, medical records clerk, demonstrator, and teacher's aide II.[4] [AR at 99, 993-94.] At step five, based on plaintiff's RFC, vocational factors, and the VE's testimony, the ALJ found that there are jobs existing in significant numbers in the national economy that plaintiff can perform, including work as a "production solderer" (Dictionary of Occupational Titles ("DOT") No. 813.684-022), "garment folder" (DOT No. 789.687-066), and "ticketer" (DOT No. 229.587-018). [AR at 100, 994-95.] Accordingly, the ALJ determined that plaintiff was not disabled at any time from the alleged onset date of July 31, 2008, through July 10, 2012, the date of the decision. [AR at 101.]

V.

THE ALJ'S DECISION

Plaintiff contends that the ALJ erred when he: (1) rejected the opinions of plaintiff's treating physician, Samy Metyas, M.D., and treating psychiatrist, Nageswara R. Guntupalli, M.D.; (2) rejected plaintiff's subjective symptom testimony; (3) determined plaintiff's RFC; (4) evaluated the lay witness testimony of plaintiff's husband; and (5) determined that plaintiff could sustain work activity and perform a significant number of jobs. [Joint Stipulation ("JS") at 9.]

As set forth below, the Court agrees with plaintiff, in part, and remands for further proceedings.

A. MEDICAL OPINIONS

1. Legal Standard

"There are three types of medical opinions in social security cases: those from treating physicians, examining physicians, and non-examining physicians." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009); see also 20 C.F.R. §§ 404.1502, 404.1527. "As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant." Lester, 81 F.3d at 830; Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing Ryan, 528 F.3d at 1198); Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010). "The opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a nonexamining physician." Lester, 81 F.3d at 830; Ryan, 528 F.3d at 1198.

"[T]he ALJ may only reject a treating or examining physician's uncontradicted medical opinion based on clear and convincing reasons." Carmickle, 533 F.3d at 1164 (citation and internal quotation marks omitted); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). "Where such an opinion is contradicted, however, it may be rejected for specific and legitimate reasons that are supported by substantial evidence in the record." Carmickle, 533 F.3d at 1164 (citation and internal quotation marks omitted); Ryan, 528 F.3d at 1198; Ghanim v. Colvin, 763 F.3d 1154, 1160-61 (9th Cir. 2014); Garrison, 759 F.3d at 1012. The ALJ can meet the requisite specific and legitimate standard "by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Reddick, 157 F.3d at 725. The ALJ "must set forth his own interpretations and explain why they, rather than the [treating or examining] doctors', are correct." Id.

2. Dr. Metyas

Dr. Metyas, a rheumatologist and plaintiff's treating physician from December 2007 through March 2012 [AR at 23, 397], saw plaintiff for her complaints of sleeping problems, numbness, joint pain, fatigue, back pain, muscle weakness, migraines, asthma, and night sweats, among other things. [AR at 397-426, 469-90, 553-74, 724-891, 928-82.] On December 5, 2007, Dr. Metyas noted that plaintiff had been diagnosed with fibromyalgia in 2006 by a different doctor, and Dr. Metyas agreed with the fibromyalgia diagnosis. [AR at 410-13.] In March 2009, Dr. Metyas included a diagnosis of mild rheumatoid arthritis. [AR at 806-07.] In September 2009, Dr. Metyas noted that plaintiff's rheumatoid arthritis was in remission. [AR at 796-97.] In November 2009, Dr. Metyas included depression and panic attacks in his assessment. [AR at 803.] In November 2010, Dr. Metyas' diagnoses included fibromyalgia, chronic fatigue, and carpal tunnel syndrome. [AR at 756.] In a treatment note dated March 8, 2012, Dr. Metyas diagnosed fibromyalgia (severe), carpal tunnel syndrome, chronic fatigue syndrome, and insomnia unspecified. [AR at 930.] Dr. Metyas treated plaintiff with medication and recommended a sleeping program, an exercise program, physical therapy, and life style modification. [See, e.g., AR at 413, 930.] Dr. Metyas recommended that plaintiff walk every day. [AR at 930.][5]

On January 20, 2009, and February 17, 2010, Dr. Metyas completed certifications of disability, certifying that plaintiff was entitled to a temporary disability placard from the California Department of Motor Vehicles ("DMV").[6] [AR at 94, 711-12, 763-64.] In the January 2009 certification, Dr. Metyas requested a temporary placard valid until July 31, 2009, and certified that plaintiff met the requirements of a disabled person found in California Vehicle Code section 295.5 because she suffers from rheumatoid arthritis and fibromyalgia, which substantially impair or interfere with mobility and render her unable to move about without the aid of an assistive device. [AR at 712.] In the February 2010 certification, Dr. Metyas requested a temporary placard valid until August 30, 2010, and certified that plaintiff met the requirements of a disabled person found in California Vehicle Code section 295.5 because she suffers from rheumatoid arthritis[7] and fibromyalgia, which substantially impair or interfere with mobility. [AR at 763.] He did not indicate in this certification that plaintiff was unable to move without an assistive device. [Id.]

Additionally, on July 9, 2008, December 2, 2008, March 18, 2009, July 1, 2009, and November 24, 2010, in connection with plaintiff's application for disability benefits through the California Employment Development Department, Dr. Metyas opined that plaintiff could not perform her regular or customary work for up to three months after each form was signed. [AR at 664, 711, 716, 756, 767.] Dr. Metyas included the diagnoses of fibromyalgia, chronic fatigue, carpal tunnel syndrome, and rheumatoid arthritis, with findings of trigger points pain, muscle aches, depression, anxiety, fatigue, headache, night sweats, chest pain, abdominal pain, numbness, diarrhea/constipation, sore throat, and sleeping problems. [Id.]

The ALJ gave "little weight" to Dr. Metyas' opinions, and instead gave "great weight" to the opinion of consultative examiner Sean To, M.D., who found that plaintiff could perform a range of light work. [AR at 92, 94, 441-45]. The ALJ gave Dr. Metyas' opinion "little weight" for the following reasons:

Dr. Metyas offered no supporting objective or diagnostic evidence. Moreover, Dr. Metyas's treatment notes, as discussed above, do not support such restrictive assessments. Dr. Metyas also provided his opinions by completing multiple forms and he did not provide[ ] a detailed explanation for his restrictive assessments. Indeed, the Regulations state that a medical opinion should be "complete and detailed enough for us to make a determination or decision about whether you are disabled or blind." For example, a complete opinion would address the nature and severity of impairments, whether the impairments met the durational requirement, and the claimant's residual functional capacity. Dr. Metyas's assessments, thus, do not even rise to the level of a medical opinion.

[AR at 94 (citations omitted).]

As an initial matter, the Social Security regulations require deference to the treating physician's opinions. See 20 C.F.R. § 404.1527; Social Security Ruling ("SSR")[8] 96-2p, 1996 WL 374188, at *1 ("A finding that a treating source's medical opinion is not entitled to controlling weight does not mean that the opinion is rejected."); Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007) ("Even if [the examining physician's] opinion were substantial evidence, ' § 404.1527 still requires deference to the treating physicians' opinions").

Here, the ALJ found that Dr. Metyas offered no objective or diagnostic evidence to support his opinions. [AR at 94.] Dr. Metyas' forms referenced plaintiff's diagnosed impairments, and findings of trigger point pain, muscle aches, depression, anxiety, fatigue, headache, night sweats, chest pain, abdominal pain, numbness, diarrhea/constipation, sore throat, and a sleeping problem. [AR at 664, 711-12, 716, 756, 767, 783.] The Court notes, however, that although the supporting evidence listed on the forms is minimal, Dr. Metyas' treatment records generally support these findings. See Kager v. Astrue, 256 Fed.App'x 919, 921 (9th Cir. 2007) ("While it is true that the notes setting forth [the treating physician]'s opinion did not themselves refer to specific ...


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