Mary Cook v. Jo Anne B Barnhart, No. 2:2006cv03766 - Document 17 (C.D. Cal. 2008)

Court Description: MEMORANDUM DECISION AND ORDER by Judge Frederick F. Mumm: For the foregoing reasons, the judgment of the Commissioner is reversed and the matter is remanded pursuant to sentence 4 of 42 U.S.C. 405(g) for further proceedings. IT IS SO ORDERED. (mr)

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Mary Cook v. Jo Anne B Barnhart Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 WESTERN DIVISION 9 10 MARY COOK, Plaintiff, 11 v. 12 13 MICHAEL J. ASTRUE, Commissioner of Social Security, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 06-3766 FFM MEMORANDUM DECISION AND ORDER 16 17 Plaintiff brings this action seeking to overturn the decision of the Commissioner 18 of the Social Security Administration denying her application for Disability Insurance 19 Benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of 20 the undersigned United States Magistrate Judge. Pursuant to the case management 21 order entered on June 29, 2006, the parties filed a Joint Stipulation detailing each 22 party s arguments and authorities on March 2, 2007. The Court has reviewed the 23 administrative record ("AR"), filed by defendant on December 22, 2006, and the Joint 24 Stipulation. For the reasons stated below, the decision of the Commissioner is 25 reversed and remanded for further proceedings. 26 /// 27 /// 28 /// Dockets.Justia.com PROCEDURAL HISTORY 1 On June 27, 2003, plaintiff filed an application for Disability Insurance Benefits. 2 3 She alleged a disability onset of April 3, 2003. Plaintiff s claim was denied initially 4 and upon reconsideration. A request for a hearing before an administrative law judge 5 ( ALJ ) was timely filed. ALJ Helen E. Hesse held a hearing on July 26, 2005. 6 Plaintiff appeared with counsel and testified at the hearing. On August 24, 2005, the 7 ALJ issued a decision denying benefits. Plaintiff sought review of this decision before 8 the Appeals Council, who denied the request for review on May 3, 2006.1 Plaintiff commenced the instant action on June 19, 2006. 9 10 CONTENTIONS 11 Plaintiff raises two issues in this action: 12 13 1. Whether the ALJ properly considered the treating physician s opinion; and 14 2. Whether the ALJ properly considered plaintiff s subjective allegations. 15 STANDARD OF REVIEW 16 17 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision to 18 determine whether the Commissioner s findings are supported by substantial evidence 19 and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 20 841, 846 (9th Cir. 1991). Substantial evidence means more than a mere scintilla but 21 less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 22 28 L. Ed. 2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 23 573, 575-76 (9th Cir. 1988). Substantial evidence is such relevant evidence as a 24 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 25 U.S. at 401. This Court must review the record as a whole and consider adverse as 26 27 28 1 The Appeals Council s decision is not contained in the Administrative Record. However, the parties have agreed that the Appeals Council denied the request for review on May 3, 2006. (Joint Stipulation at 3). 2 1 well as supporting evidence. Green v. Heckler, 803 F.2d 528, 929-30 (9th Cir. 1986). 2 Where evidence is susceptible to more than one rational interpretation, the 3 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 4 (9th Cir. 1984). 5 DISCUSSION 6 7 A. 8 In evaluating medical opinions, the case law and regulations distinguish among 9 Treating Physician s Opinion three types of physicians: (1) those who treat the claimant (treating physicians); (2) 10 those who examine but do not treat the claimant (examining physicians); and (3) those 11 who neither examine nor treat the claimant (non-examining physicians). See 20 C.F.R. 12 §§ 404.1502, 416.927; Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, 13 the opinions of treating physicians are given greater weight than those of other 14 physicians, because treating physicians are employed to cure and therefore have a 15 greater opportunity to know and observe the claimant. Smolen v. Chater, 80 F.3d 16 1273, 1279 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) 17 (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). Although the treating 18 physician's opinion is entitled to great deference, it is not necessarily conclusive as to 19 the question of disability. Magallanes, 881 F.2d at 751 (citing Rodriguez v. Bowen, 20 876 F.2d 759, 761-62 (9th Cir. 1989)). Where the treating physician's opinion is 21 uncontradicted, it may be rejected only for "clear and convincing" reasons. Lester, 81 22 F.3d at 830. Where the treating physician's opinion is contradicted, the ALJ may reject 23 it in favor of a conflicting opinion of an examining physician if the ALJ makes 24 findings setting forth specific, legitimate reasons for doing so that are based on 25 substantial evidence in the record. Ramirez v. Shalala, 8 F.3d 1449, 1453-54 (9th Cir. 26 1993). 27 /// 28 The ALJ determined that plaintiff suffered from probable fibromyalgia and was 3 1 limited to performing work at the medium exertional level. (AR 15). In so 2 concluding, the ALJ relied on the opinion of the medical expert, Dr. Sami Nafoosi, and 3 rejected the opinion of the treating physician, Dr. James Gitlin. (AR 12-14). Plaintiff 4 contends that the ALJ failed to properly evaluate the evidence. (Joint Stipulation at 4- 5 10). Plaintiff argues that Dr. Gitlin s opinion should have been given more weight. 6 (Joint Stipulation at 10). 7 In rejecting Dr. Gitlin s opinion, the ALJ stated as follows: 8 In December, 2003, James Gitlin, M.D., opined [plaintiff] was 9 disabled due to significant pain (Exhibit 6F). The undersigned rejects this 10 assessment as it is unsupported by any actual objective medical findings 11 and relies on subjective complaints only. Additionally, the determination 12 of disability is reserved to the ALJ (20 CFR 404.1527(e)). 13 In February, 2004, Dr. Gitlin indicated [plaintiff] was unable to sit, 14 stand or walk more than 15 to 20 minutes at any given time due to pain. 15 She was unable to lift or carry more than 5 pounds occasionally. She was 16 unable to use her upper or low extremities for any action. She was unable 17 to squat, crawl, climb or reach. She could occasionally bend. She had 18 total restrictions from unprotected heights and moderate restrictions from 19 exposure to marked changes in temperature and humidity, and driving 20 automotive equipment (Exhibit 9F). In July, 2005, Dr. Gitlin indicated 21 [plaintiff] was unable to sit, stand or walk more than 5 to 10 minutes at 22 any given time, and was unable to lift or carry any weight. The 23 assessment was otherwise unchanged (Exhibit 12F). The undersigned 24 notes that neither assessment is supported by any objective medical 25 findings and are inconsistent with the substantial evidence of record. 26 Indeed, while [plaintiff] may have had some tenderness, her range of 27 motion has consistently been intact and her lab tests have all been normal. 28 There is no objective basis in the record for such limitations. These 4 assessments are rejected accordingly. 1 2 (AR 12-13). Although Dr. Gitlin s ultimate disability finding may not have been binding on 3 4 the ALJ, the ALJ was still obligated to provided legally sufficient reasons for rejecting 5 Dr. Gitlin s opinion concerning plaintiff s functional limitations. The ALJ failed to do 6 so. In this case, a lack of objective medical findings (i.e., range of motion and lab 7 tests) does not constitute proper justification because fibromyalgia is a disease that 8 eludes such measurement. See Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) 9 (finding that the ALJ erred by effectively requir[ing] objective evidence for a 10 disease that eludes such measurement. ) (quoting Green-Younger v. Barnhart, 335 11 F.3d 99, 108 (2d Cir. 2003)). Indeed, fibromyalgia is diagnosed entirely on the basis 12 of patients reports of pain and other symptoms, including multiple tender points, 13 fatigue, stiffness, and sleep disturbance. Id. at 589-90. The record shows that plaintiff 14 experienced these symptoms. (See, e.g., AR 137 severe body pains and difficulty 15 sleeping; AR 139 generalized musculoskeletal pain involving arms, legs, neck, and 16 lower back; AR 150 pain all over ; AR 151 soft tissue tender points and pain in 17 the lower back, arms, and legs; AR 157 pain in the neck and lower back; AR 160 18 difficulty sleeping, tingling in the hands, and pain in the arms, legs, and lower back; 19 AR 164 soft tissues very tender points ; AR 171 generalized pain and difficulty 20 using hands; AR 174 generalized pain). Furthermore, as discussed below, the ALJ 21 failed to provide clear and convincing reasons for rejecting plaintiff s subjective 22 allegations of pain. 23 /// 24 /// 25 /// 26 /// 27 /// 28 Moreover, the Court notes Dr. Gitlin s expertise in rheumatology and the 5 1 lengthy duration of his treating relationship with plaintiff, which began on July 2003 2 and continued through July 2005, for a total of approximately 14 sessions.2 (AR 137, 3 139, 150-52, 156-64, 171-72, 174-75). This history lends support to plaintiff s 4 contention that Dr. Gitlin s opinion was entitled to greater consideration.3 See 20 5 C.F.R. §§ 404.1527(d)(2)(i)&(5), 416.927(d)(2)(i)&(5) (stating that more weight will 6 be given to the opinion of a specialist about medical issues related to the area of 7 specialization and to a treating source who has seen a claimant long enough to have 8 obtained a "longitudinal picture" of an impairment). Thus, the ALJ s rejection of Dr. 9 Gitlin s opinion was error. 10 B. Plaintiff s Subjective Allegations 11 Once a claimant produces medical evidence of an underlying impairment that is 12 reasonably likely to cause the alleged symptoms, medical findings are not required to 13 support their alleged severity. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); 14 see also Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) ("[B]ecause a 15 claimant need not present clinical or diagnostic evidence to support the severity of his 16 pain, a finding that the claimant lacks credibility cannot be premised wholly on a lack 17 of medical support for the severity of his pain.") (internal citation omitted); Byrnes v. 18 Shalala, 60 F.3d 639, 641-42 (9th Cir.1995) (applying Bunnell to subjective physical 19 complaints). The ALJ can reject the claimant s allegations "only upon (1) finding evidence of 20 21 malingering, or (2) expressing clear and convincing reasons for doing so." Benton v. 22 Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The following factors may be 23 considered in weighing the claimant s credibility: (1) his reputation for truthfulness; 24 (2) inconsistencies either in the plaintiff's testimony or between the plaintiff's 25 2 26 Rheumatology is the relevant specialty for fibromyalgia. Benecke, 379 F.3d at 594 fn.4. 27 3 28 Dr. Nafoosi, on the other hand, is an internal medicine physician, who never treated or examined plaintiff. (AR 30-32, 201). 6 1 testimony and his conduct; (3) his daily activities; (4) his work record; and (5) 2 testimony from physicians and third parties concerning the nature, severity, and effect 3 of the symptoms of which he complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 4 (9th Cir. 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). "General findings are 5 insufficient." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). The ALJ must 6 state which testimony is not credible and identify the evidence that undermines the 7 plaintiff's complaints. Id.; Benton, 331 F.3d at 1041. If properly supported, the ALJ's 8 credibility determination is entitled to "great deference." Green v. Heckler, 803 F.2d 9 528, 532 (9th Cir. 1986). At the hearing, plaintiff testified that she tries to exercise everyday by walking 10 11 up to one-third of a mile. (AR 183). She also stated that she performs leg exercises in 12 a pool once a week. (AR 184). As for housework, plaintiff noted that she dusts 13 occasionally and makes her bed occasionally. (AR 184). She noted that she relies on 14 her husband for other chores. (AR 184-85). Plaintiff described her daytime activities 15 as watch[ing] television, read[ing], try[ing] to walk, [and] sit[ting] at the pool. (AR 16 185). She asserted that she is not a big TV person because she can t sit long 17 enough to do it. (AR 186). Plaintiff stated, however, that she is able to care for her 18 personal hygiene. (AR 191). Plaintiff characterized her sleep as terrible because she just hurt[s], toss[es] 19 20 and turn[s]. (AR 190). She stated that fibromyalgia is the main cause for her 21 disabling pain. (AR 191). Plaintiff also noted that she experiences headaches two or 22 three times a week; numbness in her fingers, neck, and calves; and cramps and spasms 23 in her back, feet and calves. (AR 192, 195-96). Lastly, she testified that she has 24 problems concentrating. (AR 199). 25 /// 26 /// 27 /// 28 Here, the ALJ provided the following reasons for rejecting plaintiff s subjective 7 1 allegations: 2 [Plaintiff] maintains she is unable to work due to her alleged 3 subjective symptoms. However, the undersigned notes [plaintiff] has not 4 established a medically determinable impairment which would reasonably 5 be expected to produce such limitations. Indeed, her physical exams have 6 not documented any actual trigger or tender points, but only reference 7 moderate tenderness. She has full motion in all areas. [Plaintiff] has not 8 required extended periods of hospital confinement, emergency room 9 treatment, use of a TENS unit, participation in a pain control clinic, or 10 other extensive or significant forms of treatment commonly prescribed for 11 intense pain. [Plaintiff] has no abnormalities of gait, nor are any assistive 12 devices required. While [plaintiff] asserted a chronic and debilitating pain 13 syndrome of extended duration, it is noted she exhibited no evidence of 14 diffuse atrophy or muscle wasting, common indicators of chronic pain. 15 At the hearing, [plaintiff s] thoughts did not seem to wander and all 16 questions were answered alertly and appropriately. There is no credible 17 evidence of regular usage of strong medication to alleviate pain that 18 would significantly impair [plaintiff s] ability to do basic work activities. 19 There was no evidence in the medical record of any significant side 20 effects. Accordingly, the undersigned concludes [plaintiff s] testimony 21 and evidence, although appearing sincere, is not fully credible regarding 22 the extent, intensity and duration of the alleged subjective symptoms and 23 functional limitations and restrictions. 24 (AR 13). 25 As an initial matter, the ALJ s finding that plaintiff had not established a 26 medically determinable impairment which would reasonably be expected to produce 27 such limitations is contradicted by the ALJ s own conclusion that plaintiff suffered 28 from probable fibromyalgia, which was considered severe. (AR 13, 15). A 8 1 finding of probable fibromyalgia suggests that there was more evidence for than 2 against a diagnosis of fibromyalgia. Moreover, after examining plaintiff, Dr. Gitlin 3 diagnosed plaintiff with fibromyalgia.4 (AR 159-64). Critically, contrary to the ALJ s 4 finding, Dr. Portnoff and Dr. Gitlin observed multiple tender points, which are 5 common symptoms of fibromyalgia.5 (AR 118, 151, 161, 164). Therefore, medical 6 findings were not required to support the alleged severity of plaintiff s pain. See 7 Bunnell, 947 F.2d at 345. 8 9 As there is nothing in the record to suggest that plaintiff was malingering, the ALJ was required to provided clear and convincing reasons for rejecting plaintiff s 10 subjective allegations. See Benton, 331 F.3d at 1040. The remaining reasons given by 11 the ALJ, however, were not clear and convincing. 12 First, examinations showing full range of motion in all areas are not inconsistent 13 with plaintiff s allegations of disabling pain from fibromyalgia. As noted above, the 14 severity of fibromyalgia cannot be measured by objective medical findings such as 15 range of motion tests. See Benecke, 379 F.3d at 594 (citation omitted); see also 16 Sarchet, 78 F.3d at 306 ( There are no laboratory tests for the presence or severity of 17 fibromyalgia. ). 18 19 20 21 Second, the ALJ s rejection of plaintiff s allegations for being inconsistent with her treatment received namely, because plaintiff was not hospitalized, did not receive 22 23 24 25 26 27 28 4 Dr. Gitlin erroneously noted that Dr. Kelly Portnoff diagnosed plaintiff with fibromyalgia when, in fact, Dr. Portnoff diagnosed probable fibromyalgia. (AR 118, 160). Nevertheless, it appears that Dr. Gitlin made his own independent diagnosis of fibromyalgia after conducting a physical examination. (AR 159, 161-64). 5 The rule of thumb for diagnosing fibromyalgia is that the patient must have at least 11 out of 18 fixed locations of tender points. Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001) (citing Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)). Although neither physician noted the exact locations of the tender points, Dr. Gitlin diagramed plaintiff s reported areas of pain. (AR 161). 9 1 emergency room treatment, did not use a TENS unit, did not participate in a pain 2 control clinic, and did not receive other extensive or significant forms of treatment 3 commonly prescribed for intense pain fails for several reasons. The record indicates 4 that plaintiff did receive extensive medication treatment, including Clinoril, Celexa, 5 Pamelor, Desyrel, Ultram, Ultracet, Voltaren, Flexeril, and Ambien. (AR 137, 139, 6 150-52, 157-58, 160, 171-72, 174-76). Additionally, plaintiff underwent physical 7 therapy. (AR 139). Unfortunately, plaintiff reported minimal benefit from her 8 treatment. (AR 139, 150, 158, 174). Moreover, nothing in the record supports the 9 ALJ's conclusion that, because plaintiff was not hospitalized and did not receive 10 emergency room treatment, her claimed symptoms should be disregarded. 11 Third, the ALJ erred in finding plaintiff incredible based on the fact that she 12 walks with a normal gait and without the use of an assistance device. Once again, 13 nothing in the record supports the ALJ s determination that having a normal gait is 14 inconsistent with disabling pain from fibromyalgia. 15 Fourth, lack of atrophy or muscle wasting is not inconsistent with plaintiff s 16 symptoms testimony. Plaintiff never testified that she was bedridden such that her 17 muscles would atrophy. Rather, she testified that she would exercise in a pool and 18 walk up to one-third of a mile.6 (AR 183-84). 19 Fifth, the ALJ s observations at the hearing that plaintiff s thoughts did not seem 20 to wander and plaintiff answered questions alertly and appropriately were not relevant 21 to plaintiff s paramount reason for disability bodily pain from fibromyalgia. 22 Moreover, the ALJ impermissibly relied on plaintiff's performance during the 23 24 administrative hearing to reject her complaints of poor concentration. See Perminter v. 25 Heckler, 765 F.2d 870, 872 (9th Cir. 1985) (condemning sit and squirm 26 27 28 6 Plaintiff is not required to be "utterly incapacitated" in order to be disabled. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 10 1 2 jurisprudence ). Sixth, the ALJ s finding that there was no evidence of pain medication that 3 would significantly impair plaintiff s ability to do basic work activities is similarly 4 irrelevant to the determination of plaintiff s credibility. Plaintiff never testified that the 5 side effects from her medication materially contributed to her disability. 6 For the foregoing reasons, the judgement of the Commissioner is reversed and 7 the matter is remanded pursuant to sentence 4 of 42 U.S.C. § 405(g) for further 8 proceedings. 9 IT IS SO ORDERED. 10 11 12 DATED: February 6, 2008 /S/ Frederick F. Mumm FREDERICK F. MUMM United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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