EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for a period of disability and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. The parties' cross-motions for summary judgment are pending.
Plaintiff filed an application for a period of disability and DIB, alleging that she had been disabled since September 17, 2009. Administrative Record ("AR") 154-160. Plaintiff's application was denied initially and upon reconsideration. Id. at 104-106, 108-109. On December 4, 2012, a hearing was held before administrative law judge ("ALJ") Amita Tracy. Id. at 43-93. Plaintiff was represented by counsel at the hearing, at which she, a third-party witness, and a vocational expert ("VE") testified. Id.
On December 28, 2012, the ALJ issued a decision finding that plaintiff was not disabled under section 216(i) and 223(d) of the Act.
Id. at 27-36.
Plaintiff's request for Appeals Council review was denied on August 4, 2014, leaving the ALJ's decision as the final decision of the Commissioner. Id. at 1-7.
The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir.2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999).
The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir.1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir.1996). "`It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol.
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Plaintiff argues that the ALJ erred in (1) failing to adequately address the medical opinion evidence of record, and (2) rejecting her testimony without legally sufficient reasons. ECF No. 12-1. Medical opinions were provided by a treating physician and a treating nurse practitioner. Consultative opinions were obtained from an examining psychologist, and from a non-examining physician and a non-examining psychologist
Plaintiff first argues that the ALJ failed to properly weigh the medical opinion evidence of record. Id. at 12-1 at 22-30. The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Lester, 81 F.3d at 834. Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.1996). To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining medical professional may be rejected for "specific and legitimate" reasons that are supported by substantial evidence. Id. at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (e.g., supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989)). However, "[w]hen an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the examining physician are not `substantial evidence.'" Orn v. Astrue, 495 F.3d 625, 632 (9th Cir.2007).
On August 26, 2011, nurse practitioner Rachelle A. Goering completed a Residual Functional Capacity Questionnaire. AR 461-469. She reported that she had been treating plaintiff since March 2007 for Lyme disease and bipolar disorder. Id. at 461. Plaintiff's symptoms included nonrestorative sleep, chronic fatigue, morning stiffness, muscle weakness, irritable bowel syndrome, premenstrual syndrome, breathlessness, anxiety, panic attacks, depression, chronic fatigue syndrome, and pain in cervical spine and feet. Id. at 461-462. She opined that plaintiff's symptoms were severe enough to interfere with attention and concentration necessary to complete even simple tasks 40 percent of the time, and that she was incapable of performing even low stress jobs. Id. at 462. It was Ms. Goering's opinion that plaintiff could only walk one block without rest or severe pain; sit for six hours in an eight hour work day; and stand/walk for less than 2 hours in an 8-hour workday, but for only 10 to 15 minutes at one time. Id. at 463-464. She further opined that plaintiff could lift 10 pounds occasionally
Plaintiff's treating physician, Dr. Eleanor Hynote, agreed with Ms. Goering's opinion and subsequently signed the Residual Functional Capacity Questionnaire Ms. Goering completed. Id. at 530-534. Dr. Hynote also completed a Medical Source Statement for Neuroborreliosis/Neurologically-Involved Lyme Disease, which is dated June 12, 2013, after the ALJ's decision. Id. at 456-552. In that statement, Dr. Hynote opined that plaintiff could walk two to three blocks without rest or severe pain, sit for 45 minutes at one time, stand for 10 minutes at one time, and sit and stand/walk for less than 2 hours in an 8-hour workday. Id. at 549. It was also her opinion that plaintiff would need to shift positions at will, walk around for 15 minutes every hour, and would need to take unscheduled breaks "very often" for 2-3 hours. Id. at 550. Dr. Hynote further opined that plaintiff would need to keep her legs elevated when seated; could occasionally lift 20 pounds; rarely perform postural activities; and was limited in reaching, handling, and fingering. Id. at 551.
Plaintiff underwent a comprehensive psychiatric evaluation, which was conducted by Silvia Torrez, Psy. D. Id. at 448-454. Plaintiff reported that she was seeking disability benefits due to Lyme disease and bipolar disorder, which she treated with homeopathic remedies and supplements. Id. at 448-449. Dr. Torrez diagnosed plaintiff with bipolar disorder not otherwise specified and alcohol abuse, in remission. Id. at 453. She found that the likelihood of plaintiff's condition improving in the next 12 months was fair but that her attitude towards seeking employment was poor. Id. Dr. Torrez opined that plaintiff had a good ability to understand and remember very short and simple instructions and to sustain an ordinary routine without special supervision. Id. at 453-454. She further opined that plaintiff had a fair ability to understand and remember detailed instructions; accept instructions from supervisors and respond appropriately; complete a normal workday and workweek without interruptions at a constant pace; interact with coworkers; and deal with various changes in the work setting. Id. It was also her opinion that plaintiff had a fair likelihood of deteriorating in the work environment. Id. at 454.
The record also contains a Mental Residual Functional Capacity Assessment completed by Dr. Winston Brown, a non-examining physician. Id. at 501-504. Dr. Brown opined that plaintiff was moderately limited in maintaining attention and concentration for extended periods, completing a normal workday and workweek without interruptions from psychologically based symptoms, responding appropriately to changes in the work setting, and setting realistic goals or making plans independently from others. Id. at 503. It was his opinion that plaintiff was able to perform work where interpersonal contact is routine but superficial and that she would require supervision for routine tasks. Dr. Brown's opinion was subsequently affirmed by non-examining psychologist Sheri L. Simon, Ph.D. Id. at 523.
Non-examining psychologist Tawnya Brode, Psy.D. also completed a Mental Residual Functional Capacity Assessment. Id. 527-529. She opined that plaintiff was moderately limited in interacting appropriately with the general public and in accepting
Plaintiff first argues that the ALJ failed to give legally sufficient reasons for rejecting the opinion provided by Dr. Hynote and Ms. Goering. ECF No. 12-1 at 22-28. In assessing plaintiff's RFC, the ALJ gave little weight to the opinion provided by Ms. Goering, and later affirmed by Dr. Hynote, while giving great weight to the opinions from the non-treating sources, Drs. Torrez, Brown, and Brode. Id. at 34. Dr. Hynote was plaintiff's treating physician and provided an opinion assessing plaintiff's physical limitations as well as mental limitations, while examining and non-examining physicians Drs. Torrez, Brown, and Brode only provided opinions concerning plaintiff's mental limitations. Accordingly, Dr. Hynote's opinion regarding plaintiff's physical limitations is uncontradicted and could not be rejected absent clear and convincing reasons.
The ALJ provided the following explanation for why he rejected the opinion provided by Dr. Hynote and Goering:
As an initial matter, the ALJ fails to acknowledge that Dr. Hynote provided a treating-source opinion. The ALJ acknowledges that Dr. Hynote signed the Residual Functional Capacity Questionnaire completed by Ms. Goering, but ultimately treats the opinion as only given by Ms. Goering. Id. at 33-34. The ALJ consistently refers to the opinion as that of Ms. Goering and disposes of it with reduced weight because Ms. Goering is a nurse practitioner and not a medical doctor. Id. at 34. The effect is to ignore entirely Dr. Hynote's participation in providing a medical opinion as to the plaintiff's functional capacity. Yet the record contains two copies of the Residual Functional Capacity Questionnaire, one containing only Ms. Goering's signature, id. at 461-465, and another copy that includes Dr. Hynote's signature, id. at 530-534. This evidence establishes that Dr. Hynote reviewed the opinion initially provided by Ms. Goering and adopted it as his her own. Thus, the fact that Ms. Goering is not an acceptable medical source under the Commissioner's regulations, see 20 C.F.R. §§ 404.1513 & 416.913, provides no basis for rejecting Dr. Hynote's opinion.
The ALJ's other reasons for rejecting Dr. Hynote's uncontradicted opinion
Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir.1999). The ALJ provides no such explanation for his conclusion that Dr. Hyote's opinion is not supported by objective medical evidence.
Furthermore, objective evidence appears to support Dr. Hynote's opinion. Dr. Hynote indicated that plaintiff's physical symptoms include nonrestorative sleep, chronic fatigue, morning stiffness, muscle weakness, and pain in the cervical spine and feet. AR 530-531. The ALJ specifically found that plaintiff's severe impairments include Lyme disease, id. at 27, and "[s]ymptoms of Lyme disease include fatigue, chills, fever, headache, muscle pain and weakness, a stiff neck, speech problems, joint swelling, memory and concentration problems and vision problems." Pugliese v. Astrue, 2012 WL 4061355, at * 2 n. 9 (M.D.Penn. Sept. 14, 2012). The fact that plaintiff has tested positive for Lyme disease provides an objective basis for Dr. Hynote's opinion. See Morgan v. Colvin, 2013 WL 6074119 (Nov. 13, 2014) (concluding that positive blood test for Lyme disease provided an objective basis for physician's opinion that plaintiff was functionally limited due to aches and pains). Thus, the ALJ's conclusory statement that Dr. Hynote's opinion is unsupported by objective evidence is not supported by the record or any explanatory analysis and is not a legitimate basis for rejecting his opinion.
Lastly, in rejecting Dr. Hynote's opinion, the ALJ found that plaintiff's "lack of medical treatment and her overall activities of daily living are inconsistent with a complete inability to work." AR 34. An ALJ may reject the opinion of a treating physician who prescribed conservative treatment, yet opines that a claimant suffers disabling conditions. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). But here, the record indicates that Dr. Hynote prescribed medication to treat plaintiff's Lyme disease. Treatment notes from September 2010 indicate that plaintiff was doing well on antibiotics. AR 406. She reported that pain in her body and joints were clearing, and that she experienced less fogginess. Id. However, the following month plaintiff reported that her symptoms had returned and that she was having difficulty sleeping and experiencing issues with low energy and body pain. Id. Plaintiff attributed her reports of improvement during the previous visit to a manic episode. Id. Plaintiff was directed to continue taking Zithromax and was prescribed Mepron. Id. In November 2010, plaintiff reported that her energy was still low, but that her joint and body pain were "under control." Id. at 407. She also stated that she had not started Mepron, as she had been denied Medi-Cal. Id. Treatment notes form December 2010 reflected that plaintiff was continuing to take her a Zithromax, but stated that she could not afford Mepron.
The record shows that Dr. Hynote treated plaintiff's Lyme disease with prescription medication and while plaintiff eventually stopped taking her prescribed medication, it was due to a lack of funds and not Dr. Hynote's decision to cease the treatment. Thus, the ALJ's conclusory statement that Dr. Hynote's opinion is inconsistent with plaintiff's "lack of medical treatment" does not provide a clear and convincing reason for rejecting her opinion.
Furthermore, it is unclear precisely how plaintiff's reported activities are inconsistent with Dr. Hynote's opinion. In assessing plaintiff's credibility, the ALJ summarizes plaintiff's daily activities, AR 32-33, but the ALJ fails to specify which activities were inconsistent with the limitations assessed by Dr. Hynote. Cf Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir.2014) (finding that the ALJ erred by "not elaborate[ing] on which daily activities conflicted with whichpart of Claimant's testimony.") (emphasis in original). This is especially problematic given that plaintiff's reported activities are limited. As noted by the ALJ, plaintiff reported that she can care for her general hygiene, prepare simple meals such as soup or protein shakes, go grocery shopping, attend church, pay bills, watch television, and drive to a health food store to pick up meals.
The ALJ did observe, however, that a treatment note from December 2010 indicated that plaintiff "goes to health food store for few hrs work-not on payroll." Id. at 473. One could logically conclude that maintaining the ability to work at a health food store for a few hours is inconsistent with the severe limitations assessed by Dr. Hynote. However, the treatment note provides no insight into the type of work plaintiff performed at the store, nor does indicate how frequently plaintiff was able to perform a few hours of work. Other evidence in the record, however, indicates that plaintiff's visits to the store were more social in nature and any work she performed was de minimis. Plaintiff testified that she previously worked at the health food store and that she had friends that continued to work there. Id. at 52-53, 219. Plaintiff also reported that her friends would prepare her meals and that she would go to the store to pick them up. Id. at 219. The manager of the health food store, Tina Kauffman, completed a Functional Report Adult-Third Party statement, id. at 270-275, which the ALJ found to be "generally persuasive except in regards to the severity of [plaintiff's] impairments," id. at 31. She reported that plaintiff comes to the store 2-3 days a week, and during these visits she may work on the computer for 10 minutes. Id. at 270. Ms. Kauffman further stated that plaintiff might talk to customers from her chair but that she was unable to perform tasks that required her to be on her feet for more than five minutes. Id. at 270.
Thus, the limited activity plaintiff performed at the health food store was not
Equally problematic in the rejection of Dr. Hynote's opinion is the lack of any explanation as to how the evidence of record demonstrates that plaintiff can perform light work with only non-exertional limitations. Light work involves lifting no more than 20 pounds at a time and frequently lifting and carrying objects weighing up to 10 pounds, with "a good deal of walking or standing." 20 C.F.R. 404.1567(b). Here, all the medical opinions that were accorded great weight addressed only plaintiff's mental limitations. Dr. Hynote's opinion is the sole assessment of plaintiff's physical limitations. The ALJ rejected Dr. Hynote's opinion, yet failed to cite to any specific evidence demonstrating that plaintiff could perform light work notwithstanding the opinion of Dr. Hynote. As noted above, plaintiff's daily activities were limited and do not demonstrate the ability perform "a good deal of walking or standing." AR 219-222, 449.
Accordingly, this matter must be remanded for further consideration of plaintiff's physical impairments and how they impact her ability to work.
The ALJ's failed to apply the properly legal standard and the decision was not supported by substantial evidence. Accordingly, it is hereby ORDERED that:
1. Plaintiff's request for oral argument on the cross-motions for summary judgment, ECF No. 20, is denied;
2. Plaintiff's motion for summary judgment is granted;
3. The Commissioner's cross-motion for summary judgment is denied;
4. The matter is remanded for further consideration consistent with this order; and
5. The Clerk is directed to enter judgment in plaintiff's favor.
Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir.1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n. 5, 107 S.Ct. 2287. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.