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Knorr v. Berryhill

United States District Court, C.D. California

March 10, 2017

DINA KNORR, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER

          KAREN E. SCOTT United States Magistrate Judge

         Plaintiff Dina Knorr appeals the final decision of the Commissioner denying her application for Social Security benefits. For the reasons stated below, the Commissioner's decision is reversed and remanded for the Commissioner to calculate and award benefits to Plaintiff.

         I. BACKGROUND

         On September 18, 2012, Plaintiff filed applications for Social Security Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) alleging a disability onset date of October 30, 2009. See Administrative Record (“AR”) 52, 142-44. At Plaintiff's request, a hearing was held before an administrative law judge (“ALJ”) on June 23, 2014. AR 34-51. The ALJ issued a decision denying benefits on August 11, 2014. AR 18-29, 34-51.

         The ALJ determined that Plaintiff had severe impairments of a back injury and sacroiliac arthrosis. AR 22. The ALJ found that Plaintiff's gastroesophageal reflux disease (GERD), affective disorder, and depression were non-severe. AR 22-24, 26-27. The ALJ concluded that the combination of these impairments did not meet or medically equal the severity of one of the listed impairments set forth in the Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1. AR 24.

         The ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work, except that (1) she is limited to sitting for 30 minutes at one time and then would need to be able to stand/stretch for a few seconds, and (2) she is capable of performing occasional postural maneuvers. AR 24. This RFC was consistent with the opinions of two non-examining State agency physicians, which the ALJ gave great weight, but was less restrictive than the opinion of Plaintiff's treating physician, Dr. Gregory D. Carlson, which the ALJ gave little weight. AR 27. The ALJ also relied on the opinion of Dr. Neil J. Halbridge, who examined Plaintiff and performed a disability analysis under California Worker's Compensation regulations. AR 26-27.

         With this RFC, the ALJ found that Plaintiff was unable to perform her past relevant work as a registered nurse and clinical coordinator. AR 27. However, the ALJ found that jobs exist in significant numbers in the national economy that she could perform, such as information clerk, charge account clerk, and bench assembler. AR 28. Accordingly, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Social Security Act, from October 30, 2009 through the date of the decision. AR 29.

         Plaintiff asked the Appeals Council to review the ALJ's decision, but the Appeals Council declined on February 11, 2016. AR 1-6, 14-16. On that date, the ALJ's decision became the final decision of the Commissioner. See 42 U.S.C. § 405(h). This timely civil action followed.

         II. STANDARD OF REVIEW

         Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free from legal error and are supported by substantial evidence based on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court “must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the evidence can reasonably support either affirming or reversing, ” the reviewing court “may not substitute its judgment” for that of the Commissioner. Id. at 720-21.

         “A decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Generally, an error is harmless if it either “occurred during a procedure or step the ALJ was not required to perform, ” or if it “was inconsequential to the ultimate nondisability determination.” Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).

         A. The Evaluation of Disability.

         A person is “disabled” for purposes of receiving Social Security benefits if he is 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 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). A claimant for disability benefits bears the burden of producing evidence to demonstrate that he was disabled within the relevant time period. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995).

         B. The Five-Step Evaluation Process.

         The ALJ follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 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 must be denied. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

         If the claimant is not 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 his ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

         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 set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).

         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 (“RFC”) to perform his past work; if so, the claimant is not disabled and the claim must be denied. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id.

         If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because he can perform other substantial gainful work available in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. Id. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n. 5; Drouin, 966 F.2d at 1257.

         III. ISSUES PRESENTED

         Plaintiff raises the following two issues:

Issue One: Whether the ALJ properly evaluated the medical evidence and the opinion of Plaintiff's treating orthopedic surgeon, Dr. Carlson.
Issue Two: Whether the ALJ properly evaluated Plaintiff's pain testimony. (Dkt. 18 [Joint Stipulation or “JS”] at 4, 31-32.)

         IV. DISCUSSION

         A. Issue One: The ALJ's Stated Reasons for Discounting the Opinion of Plaintiff's Treating Physician, Dr. Carlson, Are Not Supported by Substantial Evidence.

         1. Applicable Law.

         In deciding how to resolve conflicts between medical opinions, the ALJ must consider that there are three types of physicians who may offer opinions in Social Security cases: (1) those who directly treated the plaintiff, (2) those who examined but did not treat the plaintiff, and (3) those who did not treat or examine the plaintiff. See 20 C.F.R. § 404.1527(c); Lester, 81 F.3d at 830. A treating physician's opinion is generally entitled to more weight than that of an examining physician, which is generally entitled to more weight than that of a non-examining physician. Lester, 81 F.3d at 830. Thus, the ALJ must give specific and legitimate reasons for rejecting a treating physician's opinion in favor of a non-treating physician's contradictory opinion or an examining physician's opinion in favor of a non-examining physician's opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); Lester, 81 F.3d at 830-31 (citing Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983)).

         If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830 (citing Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). However, “[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The factors to be considered by the adjudicator in determining the weight to give a medical opinion include: “[l]ength of the treatment relationship and the frequency of examination” by the treating physician; and the “nature and extent of the treatment relationship” between the patient and the treating physician. Orn, 495 F.3d at 631 (quoting 20 C.F.R. § 404.1527(d)(2)(i)-(ii)).

         In determining a claimant's RFC, the ALJ should consider those limitations for which there is support in the record, but the ALJ need not consider properly rejected evidence of subjective complaints. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (“Preparing a function-by-function analysis for medical conditions or impairments that the ALJ found neither credible nor supported by the record is unnecessary.”); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (“The ALJ was not required to incorporate evidence from the opinions of Batson's treating physicians, which were permissibly discounted.”).

         2. Analysis.

         There are three main differences between the RFC assessed by the ALJ and Dr. Carlson's May 2014 opinion. Compare AR 24-27 (ALJ's findings) with AR 935-39 (Dr. Carlson's 2014 opinion). First, the ALJ found Plaintiff was limited to sitting for 30 minutes at one time, and then would need to stand and stretch for a few seconds; Dr. Carlson found that Plaintiff was limited to sitting for 15 minutes at one time, and would need to change positions as needed and take unscheduled breaks. Second, both the ALJ and Dr. Carlson found that Plaintiff was limited to occasional postural maneuvers, but Dr. Carlson also found that Plaintiff could never twist or stoop/bend. Third, Dr. Carlson opined that Plaintiff would likely be absent from work about 2 days per month, whereas the ALJ predicted no atypical absenteeism.

         Plaintiff saw Dr. Carlson approximately once a month between August 2010 and May 2014, and he performed two spinal fusion surgeries on her back. See AR 608-711, 835-58, 941-66 (treatment notes); AR 762 (first surgery in August 2010); AR 732 (second surgery in April 2012). Under Social Security regulations, the length and extent of this treating relationship mean that his opinion is generally entitled to greater weight than the opinion of a non-examining physician. See 20 C.F.R. § 404.1527(c)(2)(i)-(ii); Orn, 495 F.3d at 631. Because Dr. Carlson's 2014 opinion was contradicted by the opinions of two non-examining State agency physicians, who assigned a less restrictive RFC, see AR 53-63, 64-78, the ALJ was required to provide “‘specific and legitimate reasons' supported by substantial evidence in the record” for rejecting Dr. Carlson's opinion. Orn, 495 F.3d at 632 (quoting Lester, 81 F.3d at 830).

         The ALJ gave the following reasons for assigning Dr. Carlson's opinion little weight: (1) it was inconsistent with Dr. Carlson's treatment notes, which the ALJ characterized as showing “benign physical findings”; (2) it was inconsistent with “objective studies showing no compression and only mild radiculopathy”; and (3) it was inconsistent with Dr. Carlson's own March 2013 evaluation. AR 27. As discussed below, these stated reasons do not provide substantial evidence for favoring the opinion of the non-examining physicians over Plaintiff's long-time treating physician.

         a. Dr. Carlson's Treatment Notes.

         After summarizing Dr. Carlson's treatment notes, see AR608-711, 835-58, 941-66, the ALJ characterized them as inconsistent with Dr. Carlson's May 2014 disability evaluation, see AR 935-39, because the ALJ found the treatment notes “show[ed] benign physical findings.” AR 25-27. The ALJ's opinion discusses four specific treatment notes.

         First, the ALJ found that in January 2011, Plaintiff “had normal sensation.” AR 25 (citing Exhibit 8F/62-71 [AR 669-78]). The cited progress reports state:

Physical examination shows a mild antalgia to the right. She has increased tenderness to palpation at the lumbosacral junction and in the center portion of her low back. There is no erythema, warmth, or signs of infection. She has a well-healed incision. Range of motion is unchanged at 70 degrees of flexion, 5 degrees of extension, and 10 degrees of right and left lateral bend. There are no motor or sensory deficits noted.

AR 669, 675 (emphasis added).

         Second, the ALJ found that in March 2011, Plaintiff “had a negative straight leg raising test and minimal physical findings.” AR 25 (citing Exhibit 8F/58-61). The cited progress report states:

Exam today shows that she has an area of tenderness at ¶ 3-4. She has increasing pain with extension or lateral bend to the left. She has no motor or sensory deficits in the legs. She has a negative straight leg raise.

AR 667 (emphasis added).

         Third, the ALJ found that in July 2011, Plaintiff “presented with a negative straight leg raising test and good range of motion in her hips.” AR 25 (citing Exhibit ...


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