WALLACE v. APFEL, (N.D.Cal. 2001)

SUSAN ILLSTON, United States District Judge

Plaintiff Charles Wallace brings this action pursuant to section 205(g) of the Social Security Act and 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of the Social Security Administration finding that plaintiff is not disabled and denying plaintiffs claims for disability insurance benefits and social security insurance under Title II and Title XVI of the Social Security Act, 42 U.S.C. § 401 et seq. Plaintiff and defendant have both moved for summary judgment. Having carefully considered the papers submitted, the Court REMANDS for further proceedings consistent with this decision.

BACKGROUND

Plaintiff Charles Wallace was born on January 27, 1953, he obtained his GED while incarcerated, and worked as a woodworker. (C.T. at 11). Wallace has held a variety of other jobs, including clerical work and automotive repair and sales. (C.T. at 30-34, 43-44). Wallace applied for disability insurance benefits and social security insurance pursuant to Title II and Title XVI of the Social Security Act in December 1990. (C.T. at 11, 61-62). He was found disabled and awarded benefits effective February 13, 1995. (C.T. at 11).

In 1996, upon review of his case, the Social Security Administration determined that Wallace was no longer disabled. Because of a change in the law that no longer allowed for a drug and alcohol addiction to qualify as a disability, Wallace's benefits were terminated January 1, 1997. (C.T. at 11). Wallace appealed the termination of his benefits, arguing that he was disabled according to the Social Security Act without reference to his drug or alcohol addiction (C.T. at 63-70). According to Wallace, he was disabled because of an "inability to lift, generalized weakness, and pain in his elbows, shoulders, and back." (C.T. at 25).

In August of 1996, Dr. Joan Davies and Dr. John Karan examined Wallace. Wallace complained of persistent left arm, right shoulder pain and knee pain and reported an inability to walk or lift any weights over twenty pounds. (C.T. at 12, 100). According to Dr. Karan's orthopedic evaluation, Wallace could "sit, stand, walk, move about, carry and handle heavy objects." (C.T. at 13). Dr. Davies diagnosed Wallace with tendinitis and tennis elbow, possible bursitis of the left shoulder, and tendinitis and athralgias of the left knee. (C.T. at 100-101). Dr. Asa Stockton also examined Wallace on two occasions during 1996, diagnosing Wallace with tennis elbow on his left elbow and prescribing a tennis elbow strap. (C.T. at 130-137). In a clinic note, written on October 30, 1996, the doctor observed that the strap "seemed to help" Wallace "quite a lot." Id.

In April of 1997, Wallace was examined by Dr. Badgley, who restricted Wallace to "lifting no more than five pounds, no repetitive bending, pushing, pulling, no ladders or heights, no power equipment, [and] no sitting or standing over twenty minutes without a break or change in positions." (C.T. at 161). X-rays taken on August 8, 1997, showed that Wallace suffered from scoliosis, degenerative spondylosis, and probable osteopenia. (C.T. at 153). A DEXA scan taken on September 30, 1997, showed that Wallace suffered from osteoporosis and a loss of bone mineral. (C.T at 151). In October of 1997, Dr. Badgley issued a signed statement that Wallace was disabled until January 1, 1998. (C.T. at 142, 149). In November 1997, Dr. Badgley diagnosed Wallace with back pain but reiterated that Wallace could return to work on January 1, 1998 (C.T. at 149).

After denial of his appeal regarding the termination of his benefits, Wallace requested a hearing before an administrative law judge ("ALJ"). (C.T. at 27-60). At the initial hearing, which occurred on November 20, 1997, vocational expert Leon Lowry testified (C.T. at 53). The ALJ, Fenton Hughes. asked Lowry to consider whether an individual with the following hypothetical limitations, based on Dr. Badgley's report, who "[s]hould not lift more than five pounds, do no repetitive bending or pushing or pulling, no ladders or heights . . ." was suitable for employment. Id. Lowry testified that there were no suitable occupations for a person with such limitations. (C.T. at 55).

After the hearing, the ALJ had Dr. Hamid Salari-Namin perform a consultative medical evaluation of Wallace on January 17, 1998. (C.T. at 174-177). Dr. Salari-Namin determined that Wallace's strength, sensation, and reflexes were normal, but he concluded that Wallace should not lift or carry anything in excess of forty-five pounds occasionally and lift or carry anything over twenty-five pounds regularly. (C.T. at 177). Dr. Salari-Namin also recommended that Wallace not sit, stand, or walk for over two hours on a continuous basis and "avoid activities requiring bending forward, pushing and pulling forcefully, and stooping on a frequent basis." (C.T. at 177).

Based on application of the Medical-Vocational Guidelines ("Grids"), ALJ Hughes found that termination of Wallace's benefits was proper. He found that Wallace was capable of performing sedentary work, and therefore not "disabled" within the meaning of the Social Security Act (C.T. at 11-15). On December 22, 1999, the Appeals Council declined to review the decision of ALJ Hughes, making ALJ Hughes' decision the final decision of the Commissioner. (C.T. at 3-4, 6). Wallace seeks review in this Court pursuant to 42 U.S.C. § 405(g).

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 and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 416.967(a).

LEGAL STANDARD

The plaintiff has the burden of establishing a prima facie case for disability. See Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir 1992) (citing Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir 1984)). To establish disability the claimant must show that. (1) the claimant "suffers from a medically determinable physical or mental impairment that can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than twelve months"; and (2) that the impairment renders the claimant "incapable of performing the work that" she "previously performed and is incapable of performing any other substantial gainful employment that exists in the national economy." Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)) "Once a claimant demonstrates inability to return to past work because of a medical disability, the burden shifts to the Secretary to show the claimant can perform other substantial gainful work, considering her age, education and work experience." Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985), see also Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988).

In reviewing the denial of disability benefits, courts will not set aside the ALJ's decision so long as the ALJ's findings are based upon correct legal standards and supported by substantial evidence in the record. See Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir 1989), see also Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Substantial evidence is "more than a mere scintilla" but "less than a preponderance"; it is "such relevant 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, 1427 (1971) (citation omitted), see also Desrosiers v. Secretary of Health Human Serv., 846 F.2d 573, 576 (9th Cir. 1988). To determine whether substantial evidence exists, courts must look at the record as a whole, considering both evidence that supports and that undermines the ALJ's findings. See Desrosiers, 846 F.2d at 576. However, the ALJ's decision must be upheld if the evidence is susceptible to more than one rational interpretation. See Gallant, 753 F.2d at 1453; see also Allen v. Secretary of Health Human Serv, 726 F.2d 1470 (9th Cir 1984), Allen 749 F.2d at 579 (holding that where there are conflicting medical reports or testimony, the ALJ's decision must be affirmed); Booz v. Secretary of Health and Human Serv, 734 F.2d 1378, 1380 (9th Cir 1983) (stating, "It is the ALJ's function to resolve conflicts in the evidence") Even if substantial evidence supports the Secretary's fact findings, the decision must nonetheless be set aside if improper legal standards were applied in reaching that decision. See Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978).

DISCUSSION

Wallace argues that the decision of the ALJ was not supported by substantial evidence. He contends that it was erroneous for the ALJ to fail to explain his reasons for rejecting the medical opinion of Dr. Badgley as to Wallace's disability status. "Since this evidence was critical to the case, the ALJ was required to explain his reasons for rejecting it." Plaintiffs Reply at 3. Further, Wallace contends that it was legal error for the ALJ to decide the case without reference to the vocational testimony offered by Leon Lowry. See Plaintiffs Memorandum in Support of Motion for Summary Judgment at 5. Wallace also argues that application of the Grids in determining his disabled status is a reversible legal error because he has significant nonexertional impairments, since he requires a sit/stand option at work and he is incapable of forceful pushing and pulling. See id. at 5-7. The existence of these significant nonexertional impairments, Wallace argues, precludes the use of the Grids, requiring instead the testimony of a vocational expert to determine whether Wallace is disabled according to the regulations.

The Commissioner contends that Wallace has not established a significant nonexertional impairment, and therefore the ALJ was entitled to use the Grids in determining the claimant's disability status. See Defendant's Memorandum in Support of Cross-Motion for Summary Judgment at 4. Under the Grids, the findings in the reports of both examining physicians, Dr. Salari-Namid and Dr. Karan, are consistent with the ALJ's determination that Wallace can perform sedentary work. Further, the Commissioner asserts that the ALJ's failure to provide a reason for rejecting Dr. Badgley's opinion is harmless error for three reasons. First, the restriction from work identified by Dr. Badgley lasted less than twelve months; therefore, Wallace did not meet the statutory definition of being disabled. Second, Dr. Badgley's opinion was based on the subjective pain complaints of Wallace. As such, the ALJ was entitled to discount Dr. Badgley's opinion. Lastly, the Commissioner argues that to the extent the medical evidence was ambiguous, the ALJ was entitled to resolve the ambiguities as he saw fit. See id. at 6.

A. Failure to Address the Treating Physician's Evaluation was Legal Error.

Wallace argues that the ALJ erred in rejecting the findings and opinions of his treating physician, Dr. Badgley, in favor of those of the consultative examiners, Dr. Salari-Namin and Dr. Karan. In making this argument, Wallace contends that the ALJ's decision was not supported by substantial evidence.

Ninth Circuit case law distinguishes among the opinions of three types of physicians: (1) those that treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non-examining physicians). See Lester v. Chater, 81 F.3d 821, 830 (9th Cir 1996).

Although the ALJ is entitled to make credibility determinations, the opinions of treating physicians are generally given controlling weight. See Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir 1990). Because treating physicians are "employed to cure" and thus have "a greater Opportunity to know and observe the patient as an individual," their opinions are given greater weight than the opinions of other physicians. Magallanes, 881 F.2d at 751 (citation omitted). While the treating physician's opinion is not necessarily conclusive as to the ultimate issue of whether a claimant is "disabled," in order "[t]o reject the opinion of a treating physician, which conflicts with that of an examining physician, the ALJ must `make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence on the record.'" Id. (quoting Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citations omitted)). The ALJ can meet this burden by setting out a "detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation . . ., and making findings." Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986); see also Magallanes, 881 F.2d at 751.

Here, the ALJ failed to give specific reasons for disregarding the opinion of the treating physician, Dr. Badgley. The Commissioner argues that this is harmless error because even taking into account Dr. Badgley's opinion, Wallace would not be disabled. To be disabled under the Social Security Act, Wallace must have been or will be disabled for a continuous period of at least twelve months. See 42 U.S.C. § 423(d)(2)(A). Dr. Badgley's opinion found that Wallace was disabled for less than twelve months. The Commissioner also argues that Dr. Badgley's testimony was based on the subjective pain complaints of Wallace, and therefore the Commissioner was entitled to reject them if they were not supported by objective evidence. However, the ALJ does not specify either of these reasons in his final report, and, in fact, fails to discuss Dr. Badgley's medical evaluation at all. The failure to discuss the treating physician's medical opinion constitutes legal error. See, e.g., Winans, 853 F.2d at 647 ("We find nothing in the ALJ's decision which indicates why . . . [the treating physician's] medical findings, reports, and opinion were disregarded. Because the ALJ did not state reasons based on substantial evidence, we reverse the decision to deny benefits.").

In support of the argument that ALJ Hughes' failure to consider Dr. Badgley's opinion was harmless error because the ALJ is entitled to resolve ambiguities as he sees fit, the Commissioner cites, Magallanes. However, Magallanes is distinguishable from the case at hand. It concerned a retrospective medical opinion, in which the treating physician opined that the claimant had become disabled two years prior to the physician's examination and treatment. See Magallanes, 881 F.2d at 754. Here, Dr. Badgley's opinion was not retrospective. The opinion referred to the current medical condition of Wallace at the time he was examined by Dr. Badgley. (C.T. at 142, 149).

The Ninth Circuit has accepted the proposition that "subjective symptoms of pain are a significant factor in determining whether there exists a `disability' as defined in the Act." Gallant, 753 F.2d at 1455 (quoting Mark v. Celebrezze, 348 F.2d 289, 292 (9th Cir. 1965)). The ALJ can reject self-serving complaints of pain so long as the specific findings made are supported by substantial evidence in the record. Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir 1991). Here, the ALJ has specifically found that "the claimant's subjective complaints are not credible or consistent with the medical evidence of record . . ." ALJ Decision at 5.

The failure to comply with Ninth Circuit law and delineate specific reasons for disregarding the opinion of the treating physician, Dr. Badgley, requires that this Court remand the case to the ALJ. The decision of whether to remand for further proceedings or award benefits, is within the discretion of the Court. See id. Here, the Court remands to allow the ALJ to address Dr. Badgley's medical opinion on the record.

While the Commissioner has proffered reasons why Dr. Badgley's opinion could be discounted by the ALJ, these reasons should be made in the first instance by the ALJ on the record.

B. The ALJ's Reliance on the Grids was Not Legal Error.

Wallace also contends that the ALJ erred in applying the Medical-Vocational Guidelines ("Grids") rather than consulting a vocational expert, because Wallace claimed nonexertional impairments, including a sit/stand option at work and a restriction against forceful pushing and pulling. The Commissioner asserts that the ALJ did not find that Wallace's nonexertional impairments were sufficiently severe to limit Wallace's functional capacity or preclude sedentary work.

While the ALJ did consult a vocational expert during the initial hearing, he failed to consult an expert after the consultative examination by Dr. Salari-Namin, upon which he based his ruling.

In certain instances, the Commissioner is entitled to rely on the Grids to rebut a claimant's prima facie case of disability. See 20 C.F.R. § 404, Subpart P, App. 2 (1997); see also Gonzalez v. Secretary of Health and Human Serv., 784 F.2d 1417, 1419 (9th Cir 1986). In determining the availability of jobs available to the claimant, the ALJ may rely on the Grids alone "only when the Grids accurately and completely describe the claimant's abilities and limitations." Tackett, 180 F.3d at 1102 (quoting Jones, 760 F.2d at 998). If a nonexertional impairment is sufficiently severe, such that it limits the claimant's "functional capacity in ways not contemplated by the[Grids]," application of the Grids is improper and the ALJ must instead present the testimony of a vocational expert. Desrosiers, 846 F.2d at 577; see also Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir 1985); Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1985). The mere allegation of a nonexertional limitation does not automatically preclude use of the Grids and the burden is on Wallace to establish that the nonexertional impairment is severe. See Macri v. Chater, 93 F.3d 540, 545 (9th Cir. 1996), see also Desrosiers, 846 F.2d at 577.

Examples of nonexertional limitations rendering use of the Grids inappropriate include: poor vision see Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984), pain, see Perminter, 765 F.2d at 872, and mental, sensory, postural, manipulative, or environmental limitations (e.g., inability to tolerate dust or fumes). Desrosiers, 846 F.2d at 579.

The Court finds that it was not legal error for the ALJ to rely the grids in determining that Wallace was not disabled within the meaning of the Social Security Act. While the ALJ recognized that Wallace was limited to sitting, standing, and walking for no more than two hours on a continuous basis and could not do any forceful pushing or pulling, the ALJ properly determined that these impairments would not prevent Wallace from performing sedentary work.

First, the Commissioner notes that the limitation to sitting for no more than two hours on a continuous basis may be accommodated by regularly scheduled breaks and a lunch break, and is thus not sufficiently severe to preclude application of the Grids. As stated in Social Security Ruling 83-12, "persons who can adjust to any need to vary sitting and standing by doing so at breaks, lunch periods, etc., would still be able to perform" sedentary to light work. SSR 83-12 Unempl. Ins. Rep. (CCH) (New Matters) ¶ 14,533 (1983). Therefore, Wallace's inability to sit, stand, or walk for more than two hours on a continuous basis does not preclude application of the Grids.

Second, Dr. Salari-Namin's finding that Wallace was restricted from forceful pushing or pulling did not preclude application of the Grids. In order to necessitate the use of a vocational expert in lieu of the Grids, Wallace must demonstrate that he has a significant nonexertional impairment not contemplated by the Grids. See Desrosiers, 846 F.2d at 577. Here, the ALJ found that Wallace was restricted to sedentary work. By definition sedentary work requires "lifting no more than ten pounds at a time and occasionally lifting or carrying articles like docket files. . . ." 20 C.F.R. § 416.967(a). Occasionally lifting and carrying articles is different from, and does not require, forceful pushing and pulling. Consequently, a restriction against forceful pushing and pulling does not have a significant impact on Wallace's ability to do sedentary work. Therefore, the ALJ's use of the Grids was proper, and his failure to consult a vocational expert was not erroneous.

While Wallace cites to various cases where a restriction against forceful pushing and pulling, in part, precluded application of the Grids, each of those cases is distinguishable because the plaintiffs were limited to light work rather than sedentary work. See Duncan v. Apfel, No. 98-5002, 1998 U.S. App. LEXIS 21015 (10th Cir. August 26, 1998) ("Because the ALJ found that plaintiff can do light work, and light work includes jobs requiring "pushing and pulling of arm or leg controls' . . . her restrictions matter greatly. If plaintiff can not perform all the functions of light work as it is defined by the regulations . . . a vocational expert should have been called."); see also Cox v. Apfel, No 98-7039, 1998 U.S. App. LEXIS 31318 (10th Cir. December 14, 1998) (light work); Golden v. Apfel, 1999 U.S. Dist. LEXIS 8486 (S.D. Ala. May 12, 1999) (light work).

CONCLUSION

For the foregoing reasons, plaintiff's motion for summary judgment is DENIED and defendants cross-motion for summary judgment is DENIED. The case is remanded for clarification as to why the ALJ disregarded Wallace's treating physician's opinion.

JUDGMENT

In accordance with this Court's Order Denying Plaintiffs Motion and Defendant's Cross-Motion for Summary Judgment; and Remanding for Further Proceedings filed March 2, 2001, judgment is hereby entered.