The opinion of the court was delivered by: Mary Alice Theiler United States Magistrate Judge
ORDER RE: SOCIAL SECURITY DISABILITY APPEAL
Plaintiff James H. Taylor proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's applications for Disability Insurance (DI) and Supplemental Security Income (SSI) benefits after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, the Court orders this case REMANDED for further administrative proceedings.
FACTS AND PROCEDURAL HISTORY
Plaintiff was born on XXXX, 1958.*fn1 He completed the eleventh grade of high school and reports an inability to read or perform simple math. (AR 61, 364.)*fn2 Plaintiff previously worked as a short order/prep cook. (AR 22, 58.)
Plaintiff filed DI and SSI benefits applications in February 2004. (AR 12, 346-47.) He alleged disability beginning January 1, 2004 due to diabetes, high blood pressure, arthritis, and neuropathy. (AR 31, 57.) His applications were denied at the initial level and on reconsideration, and he timely requested a hearing.
On May 24, 2007, ALJ Laura Speck Havens held a hearing in this matter, taking testimony from plaintiff and vocational expert Susan Moranda. (AR 360-80.) On July 27, 2007, the ALJ issued a decision finding plaintiff not disabled. (AR 12-24.)
Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on September 18, 2007 (AR 5-8), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.
The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).
The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged in substantial gainful activity since his alleged onset date. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff's high blood pressure, arthritis, hepatitis, diabetes mellitus with neuropathy, depression and substance abuse disorder severe.
Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that plaintiff's impairments, with consideration of substance use disorders, met the criteria for listings 12.04 (affective disorders) and 12.09 (substance addiction disorders). See 20 C.F.R. Part 404, Subpt. P, App. 1, §§ 12.04 and 12.09. She further concluded that, if plaintiff stopped his substance use, he would not have an impairment or combination of impairments that met or equaled a listed impairment.
If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to perform light work, with a limitation to climb ramps and stairs, balance, stoop, kneel, crouch, or crawl occasionally, and an inability to climb ladders, ropes, or scaffolds. She also found that plaintiff should avoid exposure to extreme heat or cold, vibration, or hazards, such as moving machinery and unprotected heights, but that he retained the capacity to understand, remember, and carry out simple job instructions. The ALJ determined that, if plaintiff stopped his substance use, he would be unable to perform his past relevant work.
If a claimant demonstrates an inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. Considering the Medical-Vocational Guidelines and the testimony of the vocational expert, the ALJ found, in the absence of substance use, plaintiff would be capable of performing a significant number of jobs in the national economy, such as work as a cashier, small parts assembler, and information clerk.
This Court's review of the ALJ's decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Plaintiff argues that the ALJ erred in rejecting the opinions of three examining physicians and failed to properly consider the opinion of a fourth examining physician. He further argues that the ALJ erred in failing to consider whether his cognitive disorder and anxiety disorder were severe impairments, in failing to consider lay witness testimony, in offering an incomplete hypothetical to the vocational expert, in concluding he could perform light work, and in finding that substance use was a material factor contributing to disability. He requests remand for an award of benefits or, alternatively, for further administrative proceedings. The Commissioner argues that the ALJ's decision is supported by substantial evidence and should be affirmed.
The Court has discretion to remand for further proceedings or to award benefits. See Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). The Court may direct an award of benefits where "the record has been fully developed and further administrative proceedings would serve no useful purpose." McCartey v. Massanari 298 F.3d 1072, 1076 (9th Cir. 2002).
Such a circumstance arises when: (1) the ALJ has failed to provide legally sufficient reasons for rejecting the claimant's evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled if he considered the claimant's evidence.
Id. at 1076-77. For the reasons described below, the Court finds a remand for further administrative proceedings appropriate in this case.
In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where not contradicted by another physician, a treating or examining physician's opinion may be rejected only for "'clear and convincing'" reasons. Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). Where contradicted, a treating or examining physician's opinion may not be rejected without "'specific and legitimate reasons' supported by substantial evidence in the record for so doing." Id. at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
A. Drs. Frederick Lemere and Cassandra Clark
Dr. Frederick Lemere examined plaintiff on June 30, 2004. (AR 94-97.) He found plaintiff markedly limited in several respects (ability to learn new tasks, relate appropriately to co-workers and supervisors, interact appropriately in public, and respond appropriately to and tolerate the pressures and expectations of a normal work setting), and described him as "too depressed, and in pain to be able to concentrate on a job." (AR 96.) Dr. Lemere opined: "The prognosis for employability is nil because of chronic pain and major health problems." (AR 97.)
Dr. Cassandra Clark examined plaintiff on July 28, 2005. (AR 247-50.) She also assessed several marked limitations (ability to understand complex instructions, learn new tasks, exercise judgment and make decisions, relate appropriately to co-workers and supervisors, interact appropriately in public, and respond appropriately to and tolerate pressures and expectations of normal work setting). (AR 249.) She opined that the cognitive limitations (ability to understand complex instructions, learn new tasks, exercise judgment, and make decisions) were most likely not the result of alcohol or drug abuse, and that, although alcohol or drug treatment or a sixty-day period of abstinence would probably decrease the severity of his condition/allow improvement, "it is also possible that there is enough damage to the limbic system from his cocaine use that there will be no improvement[, explaining] the unsuccessful antidepressant trials." (AR 248-49.) She deemed plaintiff seriously disturbed. (AR 250.)
The ALJ described Drs. Lemere and Clark as expressing opinions regarding plaintiff's employability. (AR 22.) She gave their "assessments little weight as they do not reflect findings based on a longitudinal treating relationship and were rendered for the purpose of evaluating [plaintiff's] eligibility for social service benefits." (Id.) She went on to note that opinions such as whether or not an individual is "disabled" or unable to work are administrative findings reserved to the Commissioner. However, as argued by plaintiff, the ALJ failed to provide sufficient reasoning for rejecting these physicians' opinions.
The ALJ first discounted the opinions of Drs. Lemere and Clark because they did not have a treating relationship with plaintiff. Yet, while a treating physician's opinion is generally entitled to more weight than that of an examining physician, the ALJ did not here favor the opinion of a treating physician over that of Dr. Lemere or Dr. Clark. An ALJ must consider and give adequate reasons for rejecting the opinions of an examining physician. The mere absence of a treating relationship does not constitute a clear and convincing or specific and legitimate reason for rejecting such opinions.
The Court also questions the ALJ's second reason for giving little weight to the opinions of Drs. Lemere and Clark -- the purpose of their evaluations. As stated by the Ninth Circuit Court of Appeals in Lester: "The purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them. An examining doctor's findings are entitled to no less weight when the examination is procured by the claimant than when it is obtained by the Commissioner."
81 F.3d at 832 (quoting Ratto v. Secretary, 839 F. Supp. 1415, 1426 (D. Or. 1993) ("'The Secretary may not assume that doctors routinely lie in order to help their patients collect disability benefits.' While the Secretary 'may introduce evidence of actual improprieties,' no such evidence exists here.")) This calls the ALJ's reasoning into question.
The Commissioner argues that the ALJ appropriately mentioned the purpose of the evaluations to demonstrate that they were prepared under the rules of a different disability program -- social service benefits, as opposed to Social Security benefits. While this may be true, the ALJ should have expanded on this reasoning, explaining any relevant differences between the ...