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Rose v. Berryhill

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

June 13, 2017

CHERYL E. ROSE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.


          DOUGLAS F. McCORMICK United States Magistrate Judge.

         Cheryl E. Rose (“Plaintiff”) appeals from the Social Security Commissioner's final decision denying her application for Social Security Disability Insurance Benefits (“DIB”). For the reasons discussed below, the Commissioner's decision is reversed and this matter is remanded for an award of benefits.

         I. BACKGROUND

         On August 23, 2010, Plaintiff filed an application for DIB, alleging that she had been disabled since April 30, 2006. Administrative Record (“AR”) 81-82, 134-35. After her application was denied, she requested a hearing before an Administrative Law Judge (“ALJ”). AR 97. A hearing was held on July 30, 2012, at which Plaintiff, who was represented by counsel, testified, as did a medical expert (“ME”), Dr. Samuel Landau, and a vocational expert (“VE”). AR 35-70. In a written decision issued August 20, 2012, the ALJ denied Plaintiff's claim for benefits. AR 12-34. Plaintiff requested review of the ALJ's decision. AR 11. On December 18, 2013, the Appeals Council denied review. AR 5-10.

         Plaintiff appealed, and on August 11, 2014, this Court reversed the Commissioner's decision and remanded the case for further proceedings, finding among other things that the ALJ had failed to provide a legally sufficient reason for rejecting the opinions of Plaintiff's treating rheumatologists, Drs. Anthony Bohan and Joan Campagna. AR 624-33. On October 24, 2014, the Appeals Council vacated the August 20, 2012 ALJ decision and remanded the case to the ALJ for further proceedings consistent with the Court's order. AR 637-39. The ALJ held a new hearing on October 7, 2015, at which Plaintiff, who was represented by counsel, testified, as did Dr. Bohan and a VE. AR 555-86.

         On December 1, 2015, the ALJ issued a new decision, again denying Plaintiff's claim for benefits. AR 528-53. The ALJ found that Plaintiff last met the insured status of the Social Security Act on December 31, 2010, and that through that date, Plaintiff had the following severe impairments: “fibromyalgia; bilateral carpal tunnel; degenerative disc disease of the cervical spine; headaches; early peripheral neuropathy; inflammatory polyarthritis (mostly in hands and knees), osteoarthritis, anxiety disorder; and depression.” AR 533-34. The ALJ found that Plaintiff's impairments did not meet or equal the criteria of a listing in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 534-36. The ALJ found that Plaintiff maintained the residual functional capacity (“RFC”) to perform a “range of light work” as follows:

she could stand and walk for two hours of an eight-hour workday; she could sit without limitation except with normal breaks such as every two hours; she could lift and/or carry 20 pounds occasionally and 10 pounds frequently; she could occasionally stoop and bend; she could climb stairs but she could not climb ladders, work at heights or balance; she must avoid forceful gripping, grasping, or twisting, but she could do frequent fine manipulation such as keyboarding and frequent gross manipulation such as opening drawers and carrying files; she could do occasional neck motions, but must avoid extreme motions of the head such as looking over her shoulder; she could not operate heavy equipment and motorized vehicles; she could not work around unprotected machinery or work where the safety of others could be compromised; she could not work at unprotected heights; [Plaintiff] is limited to work of no more than [a Specific Vocational Preparation (“SVP”)] ¶ 5[2]; she could not perform fast-paced work such as assembly line work; and she could not perform inherently stressful jobs such as taking complaints or working as an EMT (Emergency Medical Technician).

AR 536-37. In so finding, the ALJ again rejected Drs. Bohan's and Campagna's opinions. AR 540-41. Based on the VE's testimony, the ALJ found that through the date last insured, Plaintiff could perform jobs existing in significant numbers in the national economy. AR 544-45. As such, she concluded that Plaintiff was not disabled. AR 545.

         In a notice accompanying her decision, the ALJ informed Plaintiff that she could file written exceptions to the decision with the Appeals Council or, once the ALJ's decision became final in 60 days, she could file a new civil action in the federal district court. AR 528-59. On February 2, 2016, Plaintiff filed a complaint in this Court. Dkt. 1.



         Plaintiff argues that the ALJ erred in (1) discounting the opinion of her treating rheumatologist, Dr. Bohan, and (2) finding that she did not meet the criteria of Listing 14.09B. Joint Stipulation (“JS”) at 5. For the reasons discussed below, the Court finds that the ALJ failed to provide legally sufficient reasons for rejecting Dr. Bohan's opinion. Because the Court further finds that Dr. Bohan's opinion should be credited as true and this case should be remanded for payment of benefits, it does not reach the parties' second contested issue.

         A. The ALJ Erred in Rejecting Dr. Bohan's Opinion

         1. Applicable Law

         Three types of physicians may offer opinions in Social Security cases: those who treated the plaintiff, those who examined but did not treat the plaintiff, and those who did neither. See 20 C.F.R. § 404.1527(c)[3]; Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended Apr. 9, 1996). A treating physician's opinion is generally entitled to more weight than an examining physician's opinion, which is generally entitled to more weight than a nonexamining physician's. Lester, 81 F.3d at 830. When a treating or examining physician's opinion is uncontroverted by another doctor, it may be rejected only for “clear and convincing reasons.” See Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830-31). Where such an opinion is contradicted, the ALJ must provide only “specific and legitimate reasons” for discounting it. Id.; see also Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Moreover, “[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 weight accorded to a physician's opinion depends on whether it is consistent with the record and accompanied by adequate explanation, the nature and extent of the treatment relationship, and the doctor's specialty, among other things. § 404.1527(c).

         2. Relevant Facts

         a. Dr. Landau's Opinion

         At the first ALJ hearing, on July 30, 2012, Dr. Landau summarized Plaintiff's medical records and stated that her medically determinable impairments consisted of “chronic pain, blamed on fibromyalgia syndrome”; bilateral carpal tunnel syndrome; “degenerative disk disease of the neck, consistent with her age”; headaches; “possibly very early peripheral neuropathy”; and “psychiatric diagnoses.” AR 44. He opined that those impairments did not meet or equal a Listing, stating that he had considered Listings 1.02, 1.04, 14.09, and 11.14. AR 49.

         Dr. Landau opined that Plaintiff retained the RFC to stand and walk 2 hours out of 8; sit for an unlimited amount of time with normal breaks; lift and carry 10 pounds frequently and 20 pounds occasionally; stoop and bend occasionally; climb stairs; perform frequent fine manipulation, such as keyboarding; and perform frequent gross manipulation, such as opening drawers and carrying files. AR 50. She was precluded from climbing ladders; “work[ing] at heights or balance”; performing “forceful gripping, grasping or twisting”; operating heavy equipment or motorized vehicles; working around “unprotected machinery”; or working “where the safety of others could be compromised. Id. She could occasionally move her neck but “should avoid extremes of motion” and her “head should be held in a comfortable position at other times.” Id. Plaintiff could occasionally “maintain a fixed head position for 15 to 30 minutes at a time.” Id. Dr. Landau believed that these functional limitations had existed on Plaintiff's alleged onset date and that they had continued through the present. AR 50. When Plaintiff's counsel asked why he disagreed with Plaintiff's treating rheumatologists' ...

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