Chirhart v. Berryhill ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KIMBERLY C., Case No.: 18-cv-2633-LAB-MDD 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 14 ANDREW M. SAUL, Acting RE: MOTION AND CROSS Commissioner of Social Security,1 15 MOTION FOR SUMMARY Defendant. JUDGMENT 16 17 [ECF Nos. 13 and 15] 18 This Report and Recommendation is submitted to United States 19 District Judge Larry A. Burns pursuant to 28 U.S.C. § 636(b)(1) and Local 20 Civil Rule 72.1(c) of the United States District Court for the Southern 21 District of California. 22 Plaintiff Kimberly C. (“Plaintiff”) filed this action pursuant to 42 U.S.C. 23 § 405(g) for judicial review of the final administrative decision of the 24 25 26 1 Andrew M. Saul became Commissioner of Social Security on June 17, 2019 and is therefore substituted for Nancy A. Berryhill as the Defendant in this action. See 42 U.S.C. 1 Commissioner of the Social Security Administration (“Commissioner”). (ECF 2 No. 13-1 at 2).2 The final administrative decision of the Commissioner denied 3 Plaintiff’s application for Disability Insurance Benefits under Title II of the 4 Social Security Act (“Title II”) and for Supplemental Security Income under 5 Title XVI of the Social Security Act (“Title XVI”). (AR 15).3 6 For the reasons set forth herein, the Court RECOMMENDS Plaintiff’s 7 Motion for Summary Judgment be GRANTED IN PART, Defendant’s Cross 8 Motion for Summary Judgment be DENIED, and that the case be 9 REMANDED for further proceedings. 10 I. BACKGROUND 11 Plaintiff was born on May 26, 1962. (AR 570). At the time the instant 12 application was filed on August 21, 2014, Plaintiff was 52 years-old which 13 categorized her as a person closely approaching advanced age. 20 C.F.R. §§ 14 404.1563, 416.963. 15 A. Procedural History 16 On August 21, 2014, Plaintiff protectively filed an application for a 17 period of Disability Insurance Benefits under Title II. (AR 15). On August 1, 18 2014, Plaintiff protectively filed an application for a period of Supplemental 19 Security Income under Title XVI. (Id.). The application alleged a disability 20 beginning February 11, 2013. (Id.). After her application was denied 21 initially and upon reconsideration, Plaintiff requested an administrative 22 hearing before an administrative law judge (“ALJ”). (Id.). An administrative 23 24 25 2 All pincite page references refer to the automatically generated ECF page 26 number, not the page number in the original document. 3 “AR” refers to the Certified Administrative Record filed on August 26, 2019. 1 hearing was held on May 23, 2017. (Id.). Plaintiff appeared and was 2 represented by attorney Yong Young. (AR 34). Testimony was taken from 3 Plaintiff, impartial medical expert Arnold Ostrov, and from impartial 4 vocational expert Connie Hillary. (AR 32-67). On July 6, 2017, the ALJ 5 issued a decision finding Plaintiff was not disabled from February 11, 2013 6 through the date of the decision and therefore denied Plaintiff’s claim for 7 benefits. (AR 25-26). 8 On July 6, 2017, Plaintiff sought review with the Appeals Council. (AR 9 1). On September 12, 2018, the Appeals Council denied Plaintiff’s request for 10 review and declared the ALJ’s decision to be the Commissioner’s final 11 decision in Plaintiff’s case. (Id.). This timely civil action followed. 12 II. DISCUSSION 13 A. Legal Standard 14 Sections 405(g) and 1383(c)(3) of the Social Security Act allow 15 unsuccessful applicants to seek judicial review of a final agency decision of 16 the Commissioner. 42 U.S.C. §§ 405(g), 1383(c)(3). The scope of judicial 17 review is limited in that a denial of benefits will not be disturbed if it is 18 supported by substantial evidence and contains no legal error. Id.; see also 19 Batson v. Comm’r of the SSA, 359 F.3d 1190, 1193 (9th Cir. 2004). 20 Substantial evidence means “more than a mere scintilla but less than a 21 preponderance. . . .” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) 22 (internal quotation marks and citation omitted). “[I]t is such relevant 23 evidence as a reasonable mind might accept as adequate to support a 24 conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 25 1995)). The court must consider the record as a whole, weighing both the 26 evidence that supports and detracts from the Commissioner’s conclusions. 1 1988). If the evidence supports more than one rational interpretation, the 2 court must uphold the ALJ’s decision. Batson, 359 F.3d at 1193. When the 3 evidence is inconclusive, “‘questions of credibility and resolution of conflicts in 4 the testimony are functions solely of the Secretary.’” Sample v. Schweiker, 5 694 F.2d 639, 642 (9th Cir. 1982) (quoting Waters v. Gardner, 452 F.2d 855, 6 858 n.7 (9th Cir. 1971)). 7 Even if a reviewing court finds that substantial evidence supports the 8 ALJ’s conclusion, the court must set aside the decision if the ALJ failed to 9 apply the proper legal standards in weighing the evidence and reaching his or 10 her decision. Batson, 359 F.3d at 1193. Section 405(g) permits a court to 11 enter a judgment affirming, modifying, or reversing the Commissioner’s 12 decision. 42 U.S.C. § 405(g). The reviewing court may also remand the 13 matter to the Social Security Administration for further proceedings. Id. 14 B. Summary of the ALJ’s Findings 15 In rendering his decision, the ALJ followed the Commissioner’s five step 16 sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the 17 ALJ found that Plaintiff had not engaged in substantial gainful employment 18 since February 11, 2013. (AR 18). 19 At step two, the ALJ found that Plaintiff had the following severe 20 impairments: gastrointestinal system disorder including chronic rectal pain 21 and migraine headaches (20 C.F.R. 404.1520(c) and 416.920(c)). (Id.). 22 At step three, the ALJ found that Plaintiff did not have an impairment 23 or combination of impairments that met or medically equaled one of the 24 impairments listed in the Commissioner’s Listing of Impairments. (AR 19) 25 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 26 404.1525, 404.1526, 416.920(d), 416.925 and 416.926)). 1 Plaintiff had the “residual functional capacity [(RFC)] to perform light work 2 as defined in 20 C.F.R. 404.1567(b) and 416.967(b),” with the following 3 limitations: 4 sit for 6 hours in an 8-hour workday with normal breaks; the claimant can stand and/or walk for 6 hours in an 8-hour workday 5 with normal breaks; the claimant can occasionally climb stairs 6 and ramps; the claimant can never climb ladders, ropes and scaffolds; the claimant can frequently stoop, kneel, crouch, and 7 crawl; the claimant must avoid even concentrated exposure to 8 temperature extremes and vibrations; the claimant must avoid all exposure to hazards such as moving machinery and unprotected 9 heights; and the claimant should have access to a bathroom within 10 100 yards from the work station. 11 (AR 19). The ALJ stated he considered the opinion evidence in 12 accordance with the requirements of 20 C.F.R. 404.1527 and 416.927. 13 (AR 20). 14 The ALJ then proceeded to step four of the sequential evaluation 15 process. He found Plaintiff was able to perform her past relevant work. (AR 16 25). For the purposes of his step four evaluation, the ALJ relied upon the 17 testimony of the vocational expert (“VE”), and the ability of someone with the 18 claimant’s RFC, both as actually done and as generally done in the national 19 economy. (Id.). The VE testified that Plaintiff’s past relevant work included 20 the following job: accounting clerk. (AR 61). 21 C. Whether the ALJ Erred by Failing to Provide Specific and 22 Legitimate Reasons for Rejecting Opinion of the Treating Physician 23 Plaintiff contends the ALJ failed to articulate specific and legitimate 24 reasons for rejecting the opinion of Plaintiff’s treating physician, Dr. Steven 25 Horowitz, that her chronic rectal pain prevents her from sitting for more than 26 fifteen minutes at a time and standing for long periods of time. (ECF No. 13- 1 reasons for discounting Dr. Horowitz’s opinion “are based on two isolated 2 moments” with little relevance to Plaintiff’s chronic rectal pain. (See id. at 3 10). 4 “‘Although a treating physician’s opinion is generally afforded the 5 greatest weight in disability cases, it is not binding on an ALJ with respect to 6 the existence of an impairment or the ultimate determination of disability.’” 7 Batson, 359 F.3d at 1195 (quoting Tonapetyan v. Halter, 242 F.3d 1144, 1149 8 (9th Cir. 2001)). Where a treating physician’s opinion is not contradicted by 9 another doctor, it may be rejected only for “clear and convincing” reasons. 10 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Where a treating 11 physician’s opinion is contradicted by another doctor, an ALJ may not reject 12 the treating physician’s opinion without providing specific, legitimate 13 reasons, supported by substantial evidence in the record. Id. 14 Here, Dr. Horowitz’s opinion is contradicted by other doctors. (AR 24). 15 For example, Dr. Arnold Ostrow opined that Plaintiff could sit for eight hours 16 with normal breaks and could stand and or walk for eight hours with normal 17 breaks and Drs. P. Ombres, H. Amado, and M. Gleason opined that Plaintiff 18 could work at a sedentary level. (AR 24-25). Accordingly, the ALJ must 19 provide specific and legitimate reasons supported by substantial evidence to 20 reject Dr. Horowitz’s opinion. See Lester, 81 F.3d at 830. 21 The ALJ gave “less weight” to Dr. Horowitz’s opinion because “the 22 objective treatment records are not fully consistent with the less than 23 sedentary functional capacity asserted by Dr. Horowitz.” (AR 24). In 24 particular, the ALJ cited Dr. Horowitz’s progress notes from October 29, 25 2014, which indicated that “Norco helped,” that Plaintiff was in “no acute 26 distress,” was well-nourished, and was fully oriented with good insight. (AR 1 at a hospital, which showed that Plaintiff “had normal pupils; no evidence of 2 hemorrhage on fundoscopic exam; intact exocular [sic] muscles in all four 3 directions; normal and supple neck without rigidity; a non-tender 4 gastrointestinal exam without rebound, guarding, or masses; normal 5 movement in all four extremities; fully oriented in all spheres; and no 6 apparent distress[.]” (Id.). 7 Many of the reasons cited by the ALJ are irrelevant or unrelated to 8 Plaintiff’s gastrointestinal system disorder including chronic rectal pain. (See 9 AR 18). The fact that Plaintiff was well-nourished, fully oriented with good 10 insight, had a normal and supple neck without rigidity, and normal 11 movements in all four extremities are irrelevant to her chronic rectal pain. 12 Even more irrelevant to her condition are notes regarding Plaintiff’s eyes— 13 i.e., that Plaintiff had normal pupils, no hemorrhaging on her fundoscopic 14 exam and intact ocular muscles. Finally, the fact that Plaintiff had a non- 15 tender gastrointestinal exam without rebound, guarding, or masses, on 16 February 9, 2016, is not particularly relevant. On that date, Plaintiff went to 17 the hospital complaining of a headache and visual disturbance and the focus 18 was not on Plaintiff’s chronic rectal pain. (AR 764-71). Accordingly, these 19 are not specific and legitimate reasons to discount Dr. Horowitz’s opinion. 20 See Elliott v. Comm’r of SSA, No. CV-18-8201-PCT-JFM, 2019 U.S. Dist. 21 LEXIS 111464, at *52-57 (D. Ariz. July 2, 2019) (finding the ALJ erred by 22 affording little weight to a treating physician based on evidence in the 23 medical evidence that was irrelevant). 24 The fact that Norco was helpful is also not a specific and legitimate 25 reason to discount Dr. Horowitz’s opinion. Effective control of an impairment 26 with medication is a specific and legitimate reason to discount a treating 1 1006 (9th Cir. 2006). However, Dr. Horowitz specifically indicated that while 2 Norco helps, “the effect is quite limited and [Plaintiff] continues to have 3 pain.” (AR 520). The limited effect of Plaintiff’s medication is consistently 4 noted throughout the objective medical record. (See AR 298, 310, 343-56, 359, 5 378, 436, 448). As such, this reason is not supported by substantial evidence 6 in the record. See Lester, 81 F.3d at 830. 7 Finally, the ALJ notes that Plaintiff was not in apparent or acute 8 distress and that the “longitudinal objective treatment records” are 9 inconsistent with Dr. Horowitz’s opinion. (AR 24). The objective medical 10 record shows that Plaintiff had a colonoscopy in 2011 that showed 11 “significant internal/external hemorrhoids.” (See AR 298). As a result, 12 Plaintiff had a hemorrhoidectomy in March 2011. (AR 298, 301). “She had a 13 very painful postoperative vent and things seemed to get worse at times. She 14 was unable to have normal bowel movements [and] developed a rectocele.” 15 (AR 357). Three months later, in January 2012, the same surgeon performed 16 a rectocele repair, which showed “poor relaxation and only small increase in 17 the rectal pressure” with push attempts,” indicating a “subtle type of pelvic 18 floor discoordination.” (AR 301, 357). Plaintiff “did not do well and things 19 seemed to get worse” after the repair. (AR 357). “She began to develop some 20 looseness of her bowels and difficulties with a uterine prolapse.” (Id.). 21 Accordingly, in March of 2012, Plaintiff had a hysterectomy, bilateral 22 salpingo oophorectomy, and a prolapse repair. (AR 310, 357). Following this 23 surgery, Plaintiff “had fairly profound postoperative pain and was unable to 24 have normal bowel movements.” (AR 357). 25 Since these surgeries, Plaintiff’s major symptoms have been “pain and 26 difficulty with evacuation.” (AR 315). Specifically, “[s]he has difficulty 1 lower quadrant of the abdomen . . . as well as the midline.” (Id.). Plaintiff 2 explains she has difficulty with evacuation and takes laxatives, uses enemas, 3 and evacuates with her fingers daily. (Id.). 4 Plaintiff’s primary care physician initially prescribed Vicodin, but later 5 prescribed Norco which was more helpful. (AR 357). By December 6, 2012, 6 Plaintiff was referred to Dr. Horowitz for further pain management issues 7 because her pain was still “moderate to severe” even with Norco. (AR 356). 8 Plaintiff was also referred to a UCSD bowel program because she “had 9 functional bowel movements but had some significant problems.” (AR 357). 10 UCSD performed a defecography “and found that although her sphincter 11 opened and closed normally it simply did not open enough as it was surgically 12 repaired too tightly.” (Id.). Additionally, Biofeedback demonstrated that her 13 “sphincter was moving but simply did not open enough to do the job.” (Id.). 14 On September 17, 2012, a defogram demonstrated a mild degree of 15 internal prolapse of the rectal mucosa, persistent narrowing of the anal canal 16 that could represent spasm stricture, and possible internal hemorrhoids. (AR 17 309). On October 23, 2012, Plaintiff followed up with Dr. Mittal regarding 18 the defogram. (See AR 312). Dr. Mittal stated that Plaintiff likely has pelvic 19 floor discoordination or some narrowing as a result of hemorrhoidectomy and 20 scarring. (Id.). He recommended “biofeedback therapy,” “balloon dilation in 21 case there was some scarring” and possibly “Botox injection[s].” (AR 312-13). 22 On January 17, 2013, Dr. Mittal suspected that Plaintiff has “anal stenosis,” 23 although “there is no way to be 100% sure.” (AR 314). He noted that 24 Plaintiff had a “significant rectocele in spite of rectocele repair” and that she 25 has narrowing of the anal canal.” (Id.) This time, Dr. Mittal recommended 26 “anal dilation.” (Id.). However, on March 21, 2013, Dr. Mittal reported that 1 quite distressed.” (AR 315, 325-27). At the time, Plaintiff reported spending 2 “2 to 3 hours in the toilet in the morning to have a bowel movement.” (AR 3 315). Dr. Mittal referred Plaintiff to see Dr. Ramamoorthy. (AR 316). 4 On May 21, 2013, Dr. Johnathan Takei Unkart and attending physician 5 Dr. Ramamoorthy noted that while “[a]natomically, [Plaintiff’s] anus should 6 pass stool,” she “likely has a functional dysfunction that may lead to a 7 mechanical obstruction.” (AR 301). Drs. Unkart and Ramamoorthy noted 8 that surgery would “likely not improve her symptoms” and “possibly worsen 9 and pose significant complications,” but suggested that a “trial of Botox 10 injections” may be beneficial. (Id.). On August 13, 2013, Dr. Mittal 11 questioned whether Plaintiff’s Norco tablets were causing a narcotic bowel. 12 (AR 322). To deal with Plaintiff’s complaints of constant pain and being in 13 the bathroom half the day, Dr. Mittal decided to give Plaintiff “a trial of 14 Relistor” injections every other day for two months. (Id.). 15 By May of 2014, Plaintiff reported she has constantly been in the same 16 amount of pain, even though it is “moderately controlled” with medication. 17 (AR 468). In June of 2014, Plaintiff reported somewhat worsening rectal pain 18 with cramping due to her “inability to relax her rectal sphincter muscle.” (AR 19 466). She reported having to “liquify” her stool to have bowel movements. 20 (Id.). By October 2014, Plaintiff was still experiencing pain. (AR 440). She 21 reported spending the first six hours of her day in the bathroom “trying to get 22 things going” and feels she is “slowly getting worse” even though “Norco 23 helps” somewhat. (Id.). On February 23, 2015, Plaintiff reported that her 24 rectal pain remains the same, although it is under “some control” with 25 medication. (AR 448). On March 6, 2015, Dr. Horowitz opined that Plaintiff’ 26 is “unlikely to improve” because her “neurological system for the bowel has 1 On August 26, 2016, Plaintiff reported severe symptoms of chronic 2 rectal pain that “occur constantly.” (AR 813). As of February 2017, Plaintiff 3 was still complaining of chronic rectal pain. (AR 799). Based on the record, 4 Plaintiff has consistently complained of chronic rectal pain that limits her 5 daily activities and causes her to “live[] in the bathroom daily.” (AR 298). 6 After years of treating Plaintiff, Dr. Horowitz opined that Plaintiff “does 7 not have the physical wherewithal to tolerate activities at work as a result of 8 her ongoing continuing fairly profound gastrointestinal issues and chronic 9 pain in this regard.” (AR 569-75). Pain is an inherently subjective symptom. 10 See Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Neither the 11 existence, nor severity of pain can be objectively measured or verified. Fair v. 12 Bowen, 885 F.2d 597, 601 (9th Cir. 1989). By discounting Dr. Horowitz’s 13 opinion as inconsistent with Plaintiff’s longitudinal objective treatment 14 records and failure to present in notable pain, the ALJ improperly required 15 objective evidence of pain—a symptom which is not susceptible to objective 16 measurement. See Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). 17 Based on the foregoing, the ALJ did not articulate specific and 18 legitimate reasons to discount Dr. Horowitz’s opinion regarding sitting for 19 more than fifteen minutes at a time and standing for long periods of time. 20 (See AR 24). 21 D. Remand for Further Administrative Proceedings 22 The law is well established that the decision whether to remand for 23 further proceedings or simply to award benefits is within the discretion of the 24 Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); 25 McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 26 654 F.2d 631, 635 (9th Cir. 1981). Remand pursuant to sentence four of § 1 proceedings could remedy defects in the decision. See, e.g., Kail v. Heckler, 2 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 635. Remand 3 pursuant to sentence six for the payment of benefits is appropriate where no 4 useful purpose would be served by further administrative proceedings, 5 Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980); where the record has 6 been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 7 1986); or where remand would unnecessarily delay the receipt of benefits to 8 which the disabled plaintiff is entitled, Bilby v. Schweiker, 762 F.2d 716, 719 9 (9th Cir. 1985). 10 As noted above, the ALJ erred in discounting the opinion of Plaintiff’s 11 treating physician, relying on unrelated or irrelevant reasons, reasons 12 unsupported by substantial evidence, or reasons based on a 13 misunderstanding of Plaintiff’s condition. “The ALJ erred by effectively 14 requiring objective evidence for a disease that eludes such measurement.” 15 Benecke, 379 F.3d at 594 (internal quotation marks and citation omitted). On 16 remand, should the ALJ determine that Dr. Horowitz’s opinion is entitled to 17 greater weight, there is a reasonable possibility that the residual functional 18 capacity assessment may change. Accordingly, the matter must be remanded 19 for further proceedings in accordance with these findings. 20 III. CONCLUSION AND RECOMMENDATION 21 For the foregoing reasons, this Court RECOMMENDS that Plaintiff’s 22 Motion for Summary Judgment be GRANTED IN PART, Defendant’s Cross 23 Motion for Summary Judgment be DENIED, and that the case be 24 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 25 proceedings in accordance with this Report and Recommendation. This 26 Report and Recommendation of the undersigned Magistrate Judge is 1 ||to the provisions of 28 U.S.C. § 686(b)(1) and Local Civil Rule 72.1(c) of the 2 United States District Court for the Southern District of California. 3 IT IS HEREBY ORDERED that any written objection to this report 4 ||must be filed with the Court and served on all parties no later than 5 December 27, 2019. The document should be captioned “Objections to 6 || Report and Recommendations.” 7 IT IS FURTHER ORDERED that any reply to the objections shall be g || filed with the Court and served on all parties no later than January 3, 2020. 9 || The parties are advised that failure to file objections within the specified time 10 || may waive the right to raise those objections on appeal of the Court’s order. 11 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 12 IT IS SO ORDERED. Dated: December 12, 2019 Mitel [> Hon. Mitchell D. Dembin 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27