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Eckloff v. Berryhill

United States District Court, D. Nevada

June 10, 2019

MARTI ECKLOFF, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court is Plaintiff Marti Eckloff's Motion for Remand / Reversal, ECF No. 16, and Defendant Nancy A. Berryhill's Cross-Motion to Affirm, ECF No. 19.

         For the reasons discussed below, the Court finds that the ALJ's opinion contains legal error that is not harmless. The Court finds that the credit-as-true rule applies to support a finding of disability. Therefore, the Court grants Plaintiff's motion and remands to Defendant for an award of benefits.

         II. BACKGROUND

         On March 18, 2013, Plaintiff completed an application for disability insurance benefits alleging disability since January 25, 2012. AR 20. Plaintiff was denied initially on June 26, 2013 and upon administrative reconsideration on January 5, 2014. AR 20. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) and appeared on June 2, 2015. AR 20. In an opinion dated August 11, 2015, ALJ Christopher R. Daniels found Plaintiff not disabled. AR 20-28. The / / / Appeals Council denied Plaintiff's request for review on February 15, 2017, rendering the ALJ's decision final. AR 1-3.

         The ALJ followed the five-step sequential evaluation process for determining Social Security disability claims set forth at 20 C.F.R. § 404.1520(a)(4). At step one, that ALJ found that Plaintiff has not engaged in substantial gainful activity since January 25, 2012, the alleged onset date. AR 22. At step two, the ALJ found that Plaintiff has the following severe impairments: deep vein thrombosis and history of colon cancer. AR 22-24. At step three, the ALJ found that Plaintiff's impairments do not meet or medically equal a listed impairment. AR 24.

         The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform the full range of sedentary work as defined in 20 C.F.R. § 404.1567(a). AR 24-27. Based on this RFC, the ALJ found at step four that Plaintiff is capable of performing her past relevant work as a telephone operator. AR 27.

         III.LEGAL STANDARD

         42 U.S.C. § 405(g) provides for judicial review of the Commissioner's disability determinations and authorizes district courts to enter “a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” In undertaking that review, an ALJ's “disability determination should be upheld unless it contains legal error or is not supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation omitted). “Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)) (quotation marks omitted).

         “If the evidence can reasonably support either affirming or reversing a decision, [a reviewing court] may not substitute [its] judgment for that of the Commissioner.” Lingenfelter, 504 F.3d at 1035. Nevertheless, the Court may not simply affirm by selecting a subset of the evidence supporting the ALJ's conclusion, nor can the Court affirm on a ground on which the ALJ did not rely. Garrison, 759 F.3d at 1009-10. Rather, the Court must “review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion, ” to determine whether that conclusion is supported by substantial evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

         “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Id. When reviewing the assignment of weight and resolution conflicts in medical testimony, the 9th Circuit distinguishes the opinions of three types of physicians: (1) treating physicians; (2) examining physicians; (3) neither treating nor examining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The treating physician's opinion is generally entitled to more weight. Id. If a treating physician's opinion or ultimate conclusion is not contradicted by another physician, “it may be rejected only for ‘clear and convincing' reasons.” Id. However, when the treating physician's opinion is contradicted by another physician, the Commissioner may reject it by “providing ‘specific and legitimate reasons' supported by substantial evidence in the record for so doing.” Id. A treating physician's opinion is still owed deference if contradicted and is often “entitled to the greatest weight . . . even when it does not meet the test for controlling weight.” Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007). Because a treating physician has the greatest opportunity to observe and know the claimant as an individual, the ALJ should rely on the treating physician's opinion. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). However, the ALJ may reject conclusory opinions in the form of a checklist containing no explanations for the conclusions. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

         When a treating physician's opinion is not assigned controlling weight, the ALJ considers specific factors in determining the appropriate weight to assign the opinion. Orn, 495 F.3d at 631. The factors include the length of the treatment relationship and frequency of examination; the nature and extent of the treatment relationship; the amount and quality of evidence supporting the medical opinion; the medical opinion's consistency with the record as a whole; the specialty of the physician providing the opinion; and, other factors which support or contradict the opinion. Id.; 10 C.F.R § 404.1527(c). The ALJ must provide a “detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and [make] findings” rather than state mere conclusions for dismissing the opinion of a treating physician. Reddick, 157 F.3d 715, 725 (9th Cir. 1998). The ALJ errs when he fails to explicitly reject a medical opinion, fails to provide specific and legitimate reasons for crediting one medical opinion over another, ignores or rejects an opinion by offering boilerplate language, or assigns too little weight to an opinion without explanation for why another opinion is more persuasive. Garrison, 759 F.3d at 1012-13.

         When determining the credibility of a claimant's testimony, the ALJ engages in a two-step analysis. Id. at 1014-15. First, the claimant must have presented objective medical evidence of an underlying impairment “which could reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter, 504 F.3d at 1035-36 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). The claimant does not need to produce evidence of the symptoms alleged or their severity, but she must show the impairments could reasonably cause some degree of the symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Second, the ALJ determines the credibility of the claimant's testimony regarding the severity of her symptoms. Garrison, 759 F.3d at 1014-15. Unless affirmative evidence supports a finding of malingering, the ALJ may only reject the claimant's testimony by providing “specific findings as to credibility and stating clear and convincing reasons for each.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).

         The Social Security Act has established a five-step sequential evaluation procedure for determining Social Security disability claims. See 20 C.F.R. § 404.1520(a)(4); Garrison, 759 F.3d at 1010. “The burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step five.” Garrison, 759 F.3d at 1011. Here, the ALJ resolved Plaintiff's claim at step four.

         IV. DISCUSSION

         A. Weighing of Treating Source

          Plaintiff argues that the ALJ erred in his weighing of the opinion of Michael Coy, D.O. The ALJ gave “little weight” to the Treating Physician Questionnaire completed by Dr. Coy on May 27, 2015. AR 26. At the time of the ALJ's decision in 2015, Dr. Coy had been Plaintiff's treating physician for ten years. AR 784-86. Medical evidence in the record of Dr. Coy treating Plaintiff dates back to 2008. AR 252-53, 255, 258. No. other medical opinion regarding Plaintiff's limitations is present in the record. Because Dr. Coy is Plaintiff's treating physician and is not contradicted by another physician's opinion, his opinion could only be rejected for “clear and convincing reasons.” Lester, 81 F.3d at 830.

         The ALJ gave four reasons for giving little weight to Dr. Coy's medical opinion. AR 26. First, the ALJ wrote that the limitations assessed by Dr. Coy were “based on the claimant's lumbar fracture, which was not diagnosed until January 2015.” AR 26. Second, the ALJ noted that Dr. Coy is a general practitioner whose “opinion rests on an assessment of impairments outside his area of expertise.” AR 26. Third, the ALJ observed that “[t]he possibility always exists that a doctor may express an opinion in an effort to assist a patient with whom he or she sympathizes for one reason or another” and that “patients can be quite insistent and demanding in seeking supportive notes or reports from their physicians, who might provide such a note in order to satisfy their patients' requests and avoid unnecessary doctor/patient tension.” AR 26. The ALJ opined that such motives were “more likely in situations where the opinion in question departs substantially from the rest of the evidence of record, as in the current case.” Fourth, the ALJ found “no accompanying analysis of objective justification” for Dr. Coy's opinion, which the ALJ found to be “inconsistent with the rest of the record.” AR 26.

         These reasons constitute reversible error. First, while the diagnosis of Plaintiff's lumbar fracture in January 2015 could affect the ALJ's onset date determination, it would not affect the disability determination because Plaintiff meets the insured status requirements of the Social Security Act though September 30, 2017. Dr. Coy specifically opined the Plaintiff's impairments lasted or could be expected to last at least twelve months. AR 784. Because Plaintiff continued to be eligible for benefits in 2015, the ALJ could not discount evidence of disability just because it may have begun after Plaintiff's alleged 2012 onset date. Second, the Ninth Circuit has made clear that a treating physician's opinion may not be discounted on the basis that he is a general practitioner rather than a specialist. See Lester, 81 F.3d at 833. Third, and similarly, the ALJ is not permitted to assume that a physician has lied or exaggerated to help a claimant collect benefits absent evidence of actual improprieties. Id. at 832; accord Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). Here, the ALJ merely speculated improperly as to the “possibility” of collusion between Dr. Coy and Plaintiff, which the ALJ deemed more likely due to purported discrepancies between the evidence of record and the questionnaire. Fourth, however, the ALJ did not identify what discrepancies exist between Dr. Coy's medical opinion and the rest of the evidence of record. The ALJ failed to explain clearly and convincingly exactly how and why his assessment of the record differed from Dr. Coy's to support a finding of non-disability. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). (“The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.”)

         Because Dr. Coy's opinion supports a disability finding if it is given controlling weight, the errors are not inconsequential to the ALJ's finding of non-disability. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015). Dr. Coy opined that Plaintiff could not tolerate even low stress, that Plaintiff would often need to take unscheduled breaks during an 8-hour workday lasting an average of one hour, that she could stand and walk less than two hours, and that she would be absent from work more than four days per month. AR 784-86. These limitations are not consistent with the ability to perform sedentary work, which requires the ability to stand and walk for two hours, or to sustain any work on a full-time basis, as discussed further below.

         B. Substantial Evidence in Support of RFC

          Plaintiff argues that no evidence supports the ALJ's RFC determination. The ALJ found that Plaintiff has the RFC to perform the full range of sedentary work. Pursuant to Social Security regulations:

Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking ...

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