Loretta J. Williams v. Michael J. Astrue, No. 2:2008cv04082 - Document 23 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 LORETTA WILLIAMS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 08-4082-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on June 30, 2008, seeking review of the 19 denial 20 plaintiff s 21 disability insurance benefits ( DIB ). 22 Stipulation on March 9, 2009, in which: 23 reversing the Commissioner s decision and awarding benefits or, in the 24 alternative, remanding the matter for a new administrative hearing; and 25 defendant seeks an order affirming the Commissioner s decision. 26 September 27 undersigned United States Magistrate Judge. 28 parties Joint Stipulation under submission without oral argument. by the 3, Social application 2009, the Security for a parties Commissioner period of ( Commissioner ) disability ( POD ) of and The parties filed a Joint consented plaintiff seeks an order to proceed before On the The Court has taken the SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On June 7, 2005, plaintiff protectively filed an application for a 4 POD and DIB. (Administrative Record ( A.R. ) 39-41.) Plaintiff alleges 5 an inability to work since December 2, 2004, due to a heart attack, 6 triple bypass surgery, and stress. 7 relevant work experience as an associate assembler.1 (A.R. 31, 61.) She has past (A.R. 62, 69.) 8 The Commissioner denied plaintiff s application initially. 9 (A.R. 10 31-36.) Thereafter, plaintiff filed a written request for hearing, and 11 on April 4, 2007, plaintiff, who was accompanied by a non-attorney 12 representative, testified at a hearing before Administrative Law Judge 13 William C. Thompson, Jr. ( ALJ ). 14 the ALJ denied plaintiff s claim, and the Appeals Council subsequently 15 denied plaintiff s request for review of the ALJ s decision. (A.R. 3-5, 16 10-16.) (A.R. 26, 214-32.) On June 12, 2007, 17 SUMMARY OF ADMINISTRATIVE DECISION 18 19 In his written decision, the ALJ found that plaintiff has not 20 21 engaged in substantial 22 plaintiff s alleged disability onset date, and she meets the insured 23 status requirements of the Social Security Act through December 31, 24 2010. 25 severe impairments of status post-myocardial infarction and coronary 26 artery bypass, but she does not have any impairment or combination of (A.R. 12.) gainful activity since December 2, 2004, The ALJ further found that plaintiff suffers from the 27 1 28 Plaintiff worked as an associate assembler from January 1973, through December 2004. (A.R. 69.) 2 1 impairments that meet or medically equal one of the listed impairments 2 in Appendix 1, Subpart P, Regulations No. 4. (Id.) 3 4 In reliance on the opinions of the consultative examiner and State 5 Agency medical consultant, the ALJ rejected the opinion of plaintiff s 6 treating cardiologist, Vernon Hattori, M.D. 7 ALJ 8 persistence, and limiting effects of her subjective pain symptoms were 9 not entirely credible. found that plaintiff s statements (A.R. 15.) concerning Further, the the intensity, (A.R. 14.) 10 11 The ALJ determined that plaintiff has the residual functional 12 capacity to perform light exertional activity. 13 this residual functional capacity assessment and the testimony of a 14 vocational expert, the ALJ found that plaintiff is capable of performing 15 her past relevant work as an assembler. (A.R. 12.) Based on (A.R. 15.) 16 17 Accordingly, the ALJ concluded that plaintiff has not been under a 18 disability, as defined in the Social Security Act, from December 2, 19 2004, through the date of the ALJ s decision. (A.R. 15.) 20 21 STANDARD OF REVIEW 22 23 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 24 decision to determine whether it is free from legal error and supported 25 by substantial evidence in the record as a whole. 26 F.3d 625, 630 (9th Cir. 2007). 27 evidence as a reasonable mind might accept as adequate to support a 28 conclusion. Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). 3 The evidence must be more than 1 a mere scintilla but not necessarily a preponderance. Connett v. 2 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 3 record can constitute substantial evidence, only those reasonably 4 drawn from the record will suffice. 5 1063, 1066 (9th Cir. 2006)(citation omitted). While inferences from the Widmark v. Barnhart, 454 F.3d 6 7 Although this Court cannot substitute its discretion for that of 8 the Commissioner, the Court nonetheless must review the record as a 9 whole, weighing both the evidence that supports and the evidence that 10 detracts from the [Commissioner s] conclusion. 11 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 12 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 13 responsible for determining credibility, resolving conflicts in medical 14 testimony, and for resolving ambiguities. 15 1035, 1039-40 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 16 17 The Court will uphold the Commissioner s decision when the evidence 18 is susceptible to more than one rational interpretation. 19 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 20 review only the reasons stated by the ALJ in his decision and may not 21 affirm the ALJ on a ground upon which he did not rely. 22 at 630; see also Connett, 340 F.3d at 874. 23 the Commissioner s decision if it is based on harmless error, which 24 exists only when it is clear from the record that an ALJ's error was 25 inconsequential to the ultimate nondisability determination. Robbins 26 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 27 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 28 F.3d at 679. 4 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse DISCUSSION 1 2 Plaintiff alleges the following two issues: 3 (1) whether the ALJ 4 erred in rejecting the opinion of plaintiff s treating physician; and 5 (2) whether the ALJ failed to provide clear and convincing reasons to 6 reject plaintiff s subjective pain and symptom testimony. 7 Stipulation ( Joint Stip. ) at 3.) (Joint 8 9 10 I. The ALJ Failed To Provide Specific And Legitimate Reasons For Disregarding The Opinion Of Plaintiff s Treating Physician. 11 12 Plaintiff contends that the ALJ improperly rejected the opinion of 13 plaintiff s treating cardiologist, Vernon Hattori, M.D. For the reasons 14 set forth below, the Court agrees. 15 16 A treating physician s conclusions must be given substantial 17 weight. 18 the treating doctor s opinion is contradicted by another doctor, the ALJ 19 may not reject this opinion without providing specific and legitimate 20 reasons supported by substantial evidence in the record. Orn, 495 F.3d 21 at 633 (internal punctuation and citation omitted); see also McAllister 22 v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989)( broad and vague reasons 23 for rejecting the treating physician s opinion do not suffice). Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Even if 24 25 On June 2, 2004, Dr. Hattori completed an assessment regarding 26 plaintiff s ability to perform work and opined that plaintiff was unable 27 to lift anything over five pounds. 28 Dr. Hattori opined that plaintiff was limited to: (A.R. 128.) 5 On November 22, 2004, light duty, with no 1 excessive lifting; no lifting over ten pounds; and no duty requiring any 2 reaching or pulling over shoulder height. 3 2006, in a supplemental statement, Dr. Hattori diagnosed plaintiff with 4 coronary artery disease, status post-coronary artery bypass grafts, 5 hypertension, post-operative chest pain, and depression. 6 Dr. Hattori again limited plaintiff to: 7 excessive lifting; and no lifting or pulling over shoulder height. 8 (Id.) 9 December 1, 2004, through March 13, 2006. (A.R. 125.) On January 18, (A.R. 126.) no lifting over ten pounds; no Dr. Hattori opined that plaintiff would not be able to work from (Id.) 10 11 In his written decision, the ALJ rejected the opinion of Dr. 12 Hattori 13 physician variously reporting that [plaintiff] was limited to lifting 5 14 pounds on June 22, 2004, limited to lifting 10 pounds on November [22,] 15 2004, and unable to work from December 1, 2004 through March 18, 2006 in 16 January 17 [plaintiff] appeared to be the basis for his findings. because: 2006 ; and (1) it (2) was [t]he internally subjective inconsistent, information with the provided by (A.R. 15.) 18 19 Contrary to the ALJ s assertion, Dr. Hattori s assessments are not 20 internally inconsistent. 21 underwent double coronary artery bypass surgery. 22 than four months post-surgery, on June 2, 2004, Dr. Hattori limited 23 plaintiff to lifting no more than five pounds. 24 nine 25 limitations, 26 improvement/healing, and opined that plaintiff was then limited to 27 lifting no more than ten pounds. 28 surprising that following plaintiff s February 2004 heart surgery, her months (A.R. 15.) On February 18, 2004, plaintiff post-surgery, taking Dr. into Hattori account 6 (A.R. 102-04.) (A.R. 128.) re-assessed plaintiff s (A.R. 125.) Less Nearly plaintiff s relative It hardly seems 1 ability to lift gradually increased from 5 pounds in June 2004, to 10 2 pounds in November 2004. 3 significant discomfort and pain when reaching out and up with her arms, 4 that began in or about December 2004, plaintiff was diagnosed with 5 sternal dehiscence2, and on February 27, 2006, she underwent a revision 6 of her sternotomy3 and removal of sternal wires. (A.R. 203-07.) In view 7 of this setback in plaintiff s post-heart surgery healing, it is not 8 surprising that plaintiff might be disabled until March 2006.4 Moreover, in January 2006, after experiencing 9 Moreover, the ALJ s rejection of Dr. Hattori s opinion on the 10 11 ground that [t]he subjective information provided by [plaintiff] 12 appeared to be the basis for his findings (A.R. 15) is not a legitimate 13 basis upon which to reject Dr. Hattori s opinion, especially in view of 14 the ALJ s improper rejection of plaintiff s subjective pain complaints, 15 discussed in Section II, infra. Invariably, a treating physician relies 16 on a patient s descriptions of the location and intensity of pain, her 17 responses to touch and other stimuli during examination, as well as 18 other types of subjective information, in making a diagnosis and in 19 assessing a patient s limitations. Cf. Sprague v. Bowen, 812 F.2d 1226, 20 1230 (9th Cir. 1987). 21 for the ALJ s rejection of plaintiff s credibility, the mere fact that When, as in this case, there is no legal basis 22 23 2 24 According to http://en.wikipedia.org, dehiscence is the premature bursting open of a wound along a surgical suture. It is a surgical complication that results from poor wound healing. 25 3 26 According to http://en.wikipedia.org, sternotomy is a type of surgical procedure in which a vertical inline incision is made along the sternum, after which the sternum itself is divided, or cracked. 27 4 28 After a careful review of the record, it remains unclear whether plaintiff continued to be disabled after March 2006, as plaintiff s most recent medical reports of record are dated February 27, 2006. 7 1 a physician has considered plaintiff s subjective reports in forming his 2 medical opinion does not constitute a legitimate basis for discrediting 3 that opinion. Cf. Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989). 4 5 Accordingly, remand is required to allow the ALJ the opportunity to 6 provide legally sufficient reasons, if such reasons exist, for rejecting 7 the opinion of Dr. Hattori. 8 9 II. The ALJ Failed To Provide The Requisite Clear And Convincing Reasons For Rejecting Plaintiff s Subjective Pain Testimony. 10 11 12 Plaintiff alleges that the ALJ erred in his consideration of 13 plaintiff s subjective symptom testimony. 14 15.) (Joint Stip. at 10-11, 14- For the reasons set forth below, the Court agrees. 15 16 Once a disability claimant produces objective evidence of an 17 underlying physical impairment that is reasonably likely to be the 18 source of her subjective symptom(s), all subjective testimony as to the 19 severity of the symptoms must be considered. 20 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 21 (9th Cir. 2001)(en banc); see also 20 C.F.R. § 404.1529(a) (explaining 22 how pain and other symptoms are evaluated). 23 finding of malingering based on affirmative evidence thereof, he or she 24 may only find an applicant not credible by making specific findings as 25 to credibility and stating clear and convincing reasons for each." 26 Robbins, 466 F.3d at 883. 27 absence of objective medical evidence supporting the degree of pain 28 alleged as a basis for finding that a plaintiff's testimony regarding Moisa v. Barnhart, 367 [U]nless an ALJ makes a Further, an ALJ may not rely solely on the 8 1 subjective symptoms is not credible. Fair, 885 F.2d at 601-02; Stewart 2 v. Sullivan, 881 F.2d 740, 743-44 (9th Cir. 1989). 3 4 Both in her filings with the Commissioner and in her testimony, 5 plaintiff described various subjective symptoms from which she claims to 6 suffer. Plaintiff testified that she had a heart attack on February 13, 7 2004, which required double coronary artery bypass surgery. 8 225.) 9 her chest, and because her manager didn t want to accommodate [her] 10 restrictions of no lifting over ten pounds, no lifting over shoulder 11 height, [and] no pushing or pulling. 12 further testified that she has pain in both legs, because two veins were 13 removed from one leg, and one vein was removed from the other leg, for 14 her open-heart surgery. (A.R. 230.) Plaintiff stated that, [a]fter 31 15 years of faithfulness to [her] company, long hours, injuries and 16 stressful conditions, [her] health [has] deteriorated. [She] had open 17 heart surgery [and] since [the] surgery [she] ha[s] not recovered. 18 (A.R. 26.) 19 concentrate, [has] pain, insomnia, [and] depression. 20 claimed that she cannot take care of [her] hair [and] cannot reach or 21 bend. 22 above shoulder height or pull down, and when [she] pick[s] things up, 23 it pulls against [her] chest and it causes pain. 24 stated that she is unable to sweep or mop, because it causes 25 have pain across [her] chest. (A.R. 102, She stopped working because of the residual post-surgery pain in (A.R. 223-24.) Plaintiff She further stated that she experiences an inability to (A.R. 57.) (Id.) Plaintiff Plaintiff claimed further that she cannot reach (A.R. 62.) Plaintiff [her] to (A.R. 227.) 26 In his written decision, the ALJ found that plaintiff suffers from 27 28 the severe impairments of status 9 post-myocardial infarction and 1 coronary 2 impairments that reasonably could cause the subjective pain symptoms and 3 attendant limitations about which plaintiff complains. 4 However, the ALJ rejected plaintiff s testimony regarding the nature and 5 extent of her pain, because [plaintiff s] medical records reflect that 6 her treating physicians provided limited and conservative treatment, 7 which is inconsistent with the medical response that would be expected 8 if [plaintiff s] symptoms and limitations were as severe as [plaintiff] 9 alleges. 10 artery bypass, (A.R. 14.) both of which are medically determinable (A.R. 12.) When examined in the light of the record as a whole, this reason does not withstand scrutiny. 11 12 The ALJ s rejection of plaintiff s subjective complaints of 13 residual post-open-heart surgery chest pain and attendant limitations, 14 based on the fact that plaintiff s medical treatment appears to be 15 limited and conservative, mischaracterizes the record and is not a 16 convincing reason to reject plaintiff s credibility. (A.R. 14.) Viewed 17 in its totality, the record does not support the ALJ s findings that 18 plaintiff s pain treatment has been conservative and that plaintiff s 19 treatment history is inconsistent with her claims of disabling pain. 20 Rather, the record reveals that not only did plaintiff treat with Dr. 21 Hattori every three or four months but also in-between plaintiff s 22 open-heart surgery in February 2004, and her dehiscence repair in 23 February 2006, plaintiff underwent a series of injections (on March 31, 24 2005, June 3, 2005, and June 7, 2005) to alleviate tenderness and pain 25 associated with a post-operative keloid formation on her sternal scar. 26 (A.R. 153.) In February 2006, a revision of plaintiff s sternotomy and 27 removal sternal 28 separation and dehiscence plaintiff experienced following her coronary of wires was performed 10 to deal with the sternal 1 surgery. (A.R. 203.) Further, there is no substantial evidence in the 2 record to support the ALJ s inference that plaintiff s chest pain and 3 attendant limitations would be alleviated if she were to secure more 4 aggressive treatment, such as additional injections and/or surgery.5 The 5 ALJ s finding is based on an incomplete, and misleading, review of the 6 record. 7 constitute 8 subjective complaints of disabling pain. The ALJ s selective assessment of the evidence does not a clear and convincing reason to reject plaintiff s 9 10 Accordingly, the ALJ s rejection of plaintiff s credibility without 11 setting forth clear and convincing reasons for the rejection constitutes 12 reversible error. 13 exist 14 discrediting plaintiff s pain testimony. and in On remand, the ALJ must provide reasons, if they accordance with the requisite legal standards, for 15 16 III. Remand Is Required. 17 18 The decision whether to remand for further proceedings or order an 19 immediate award of benefits is within the district court s discretion. 20 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 21 useful purpose would be served by further administrative proceedings, or 22 where the record has been fully developed, it is appropriate to exercise 23 this discretion to direct an immediate award of benefits. 24 ( the decision of whether to remand for further proceedings turns upon Where no Id. at 1179 25 26 27 28 5 Plaintiff testified at the hearing that, post-sternal dehiscence repair, she continued to treat with Dr. Hattori for medication management and stress test monitoring. (A.R. 226.) It is not unreasonable for one s post-operative treatment to be less frequent and less aggressive for a stable, if debilitating, condition. 11 1 the likely utility of such proceedings ). However, where there are 2 outstanding issues that must be resolved before a determination of 3 disability can be made, and it is not clear from the record that the ALJ 4 would be required to find the claimant disabled if all the evidence were 5 properly evaluated, remand is appropriate. Id. 6 7 Here, remand is appropriate to allow the ALJ an opportunity to 8 remedy the above-mentioned deficiencies and errors. See, e.g., Benecke 9 v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for further 10 proceedings is appropriate if enhancement of the record would be 11 useful); McAllister, 888 F.2d at 603 (remand appropriate to remedy 12 defects in the record). 13 14 CONCLUSION 15 16 Accordingly, for the reasons stated above, IT IS ORDERED that the 17 decision of the Commissioner is REVERSED, and this case is REMANDED for 18 further proceedings consistent with this Memorandum Opinion and Order. 19 20 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 21 copies of this Memorandum Opinion and Order and the Judgment on counsel 22 for plaintiff and for defendant. 23 24 LET JUDGMENT BE ENTERED ACCORDINGLY. 25 26 27 DATED: September 15, 2009 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 28 12
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