Maria C. Polanco v. Michael J. Astrue, No. 2:2008cv05550 - Document 22 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For these reasons, the Agency's decision is reversed and the case is remanded for further proceedings consistent with this memorandum opinion and order. IT IS SO ORDERED. (ca)
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Maria C. Polanco v. Michael J. Astrue Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MARIA POLANCO, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 08-5550 PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION 19 Plaintiff appeals a decision by Defendant Social Security 20 Administration (“the Agency”), denying her applications for Disability 21 Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 22 She claims that the Administrative Law Judge (“ALJ”) erred when she 23 ignored the functional assessment of treating physician Sean Leoni and 24 when she found that Plaintiff was not credible. 25 10.) 26 REVERSED and the case is REMANDED for further proceedings. (Joint Stip. at 4, For the reasons discussed below, the Agency’s decision is 27 28 Dockets.Justia.com 1 II. 2 SUMMARY OF PROCEEDINGS 3 On April 1, 2004, Plaintiff protectively filed for DIB and SSI. 4 (Administrative Record (“AR”) 61-63.) After the Agency denied the 5 applications initially and on reconsideration, she requested and was 6 granted an administrative hearing. 7 Plaintiff appeared with counsel at the hearing and testified. 8 435-71.) 9 applications. (AR 48-60.) On January 22, 2007, (AR On February 6, 2007, the ALJ issued a decision denying her (AR 13-20.) On July 3, 2008, the Appeals Council 10 denied Plaintiff’s request for review. 11 commenced this action. 12 Plaintiff then III. 13 (AR 6-8.) ANALYSIS 14 1. The ALJ’s Failure to Consider the Treating Doctor’s Opinion 15 In her first claim of error, Plaintiff contends that the ALJ’s 16 failure to provide any reasons, let alone specific and legitimate 17 ones, for rejecting a treating doctor’s opinion compels remand. 18 (Joint Stip. at 5-7.) 19 For the following reasons, the Court agrees. An ALJ is required to take into account a treating doctor’s 20 opinion in formulating her decision as to whether a claimant is 21 disabled. 22 contradicted by another doctor’s opinion, the ALJ must provide 23 “specific and legitimate” reasons for doing so. 24 495 F.3d 625, 632 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 25 (9th Cir. 1995). 26 In order to reject a treating doctor’s opinion that is See Orn v. Astrue, Dr. Sean Leoni, an internist, was one of Plaintiff’s treating 27 doctors. He saw her eight times between September 2002 and April 28 2004, each time preparing and submitting reports for Plaintiff’s 2 1 Worker’s Compensation case. (AR 206-45.) Dr. Leoni diagnosed a 2 number of impairments during this period, including hypertension, 3 morbid obesity, gastroesophageal reflux disease, irritable bowel 4 syndrome, and an orthopedic condition. 5 Plaintiff’s reflux disease and irritable bowel syndrome had been 6 “aggravated, accelerated, and lit up” by stress from work and 7 concluded in September 2002 that she was totally temporarily disabled. 8 (AR 244-45.) (AR 242.) He believed that 9 In his final report in April 2004, Dr. Leoni determined that 10 Plaintiff’s disabling reaction to emotional stress meant that she 11 should avoid contact with the public or fellow workers, as well as 12 jobs giving rise to stressful situations, such as those involving 13 deadlines, exasperating members of the public, precision, and 14 attention to detail. 15 should have access to a bathroom and should avoid heavy work. 16 212.) 17 (AR 212.) Dr. Leoni also opined that Plaintiff (AR The ALJ determined that Plaintiff could perform light work, with 18 “occasional postural activities,” meaning, consistent with the 19 vocational expert’s testimony, that Plaintiff could perform her past 20 work as a teacher’s aide and as a program director. 21 ALJ did not mention Dr. Leoni at all or explain how, despite Dr. 22 Leoni’s findings, Plaintiff was still capable of working as a 23 teacher’s aide or program director. 24 allowed to disregard Dr. Leoni’s opinion without providing reasons for 25 doing so. 26 opinion is contradicted by another doctor, the ALJ may not reject this 27 opinion without providing ‘specific and legitimate reasons’ supported 28 by substantial evidence in the record.”) This was error. (AR 18, 19.) The The ALJ was not See Orn 495 F.3d at 632 (“Even if the treating doctor's 3 1 The Agency argues that the error was harmless under Stout v. 2 Comm. Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). (Joint 3 Stip. at 8-9.) 4 argues that, since there were several possible interpretations of the 5 evidence, the ALJ’s interpretation should be upheld, citing Sandgathe 6 v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). 7 The Agency clearly misses the mark here. It offers its interpretation of the evidence and (Joint Stip. at 9.) The ALJ did not provide 8 a different interpretation of Dr. Leoni’s submissions--she provided no 9 interpretation. Based on a review of the four corners of the ALJ’s 10 decision, it is not clear whether she ever even read Dr. Leoni’s 11 reports, never mind considered them in her decision. 12 here is not one involving lay testimony--which, although competent 13 evidence, does not typically drive a disability determination–-as in 14 Stout. 15 opinion. 16 other things being equal, is entitled to deference and often dictates 17 the outcome of a case. 18 the ALJ’s error was not harmless. 19 Plaintiff’s request to credit the treating doctor’s opinion and order 20 the Agency to award benefits. 21 warranted in this context where the ALJ failed to provide adequate 22 reasons for rejecting the evidence, there are no outstanding issues 23 that need to be resolved, and it is clear that claimant is entitled to 24 relief. 25 Plaintiff has not met this standard. 26 remanded for further proceedings. And the issue The ALJ’s oversight in this case was the treating doctor’s As the Agency knows, the treating doctor’s opinion, all For these reasons, the Court concludes that The Court will not, however, grant Remand for an award of benefits is only See Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996.) 27 28 4 As such, the case will be 1 2. The ALJ’s Credibility Determination 2 In her second claim of error, Plaintiff contends that the ALJ 3 failed to provide legally sufficient reasons for concluding that she 4 was not credible. 5 the Court finds that remand is warranted on this issue as well. (Joint Stip. at 10-17.) For the following reasons, 6 ALJ’s are tasked with judging the credibility of witnesses. In 7 making a credibility determination, an ALJ may take into account 8 ordinary credibility evaluation techniques. 9 Where, as here, a claimant has produced objective medical evidence of Smolen, 80 F.3d at 1284. 10 an impairment which could reasonably be expected to produce the 11 symptoms alleged and there is no evidence of malingering, the ALJ can 12 only reject the claimant’s testimony for specific, clear, and 13 convincing reasons. 14 determination, the ALJ may take into account, among other things, 15 ordinary credibility evaluation techniques and the claimant’s daily 16 activities. 17 Id. at 1283-84. In making a credibility Id. at 1284. Plaintiff testified that she could not sit for more than 15 18 minutes or stand for longer than ten or 15 minutes at a time. (AR 19 446.) 20 three blocks and that, after, she would have to lie down for about 15 21 minutes to rest. 22 of pain in her neck and back and that her leg gave way when she 23 walked. 24 and knee pain, despite several surgeries. 25 that she could fix a simple meal, bathe, and dress herself, but that 26 she could not bend over. 27 could not put her on pain medication because it affected her blood 28 pressure and acid reflux. She also testified that she could not walk more than two or (AR 446-48.) (AR 443.) Plaintiff explained that she had a lot She complained of numbness in both hands and back (AR 448.) (AR 449.) 5 (AR 444-45.) She testified She reported that her doctors 1 The ALJ noted Plaintiff’s allegations but determined that they 2 were inconsistent with the objective medical evidence. (AR 18.) She 3 offered four reasons supporting her decision that Plaintiff was not 4 credible: 1) Plaintiff had been advised to maintain a gym membership 5 with the goal of weight control, suggesting that she was “capable of 6 maintaining some level of physical activity on a sustained basis”; 7 2) Plaintiff had stopped taking Vicodin to control her pain; 8 3) Plaintiff did not receive treatment for her condition after July 9 2005; and 4) an MRI of the lumbar spine in 2004 “revealed no recurrent 10 canal stenosis, a mild disc protrusion with no significant compromise 11 of the neural elements, and no neural impingement or compromise.” 12 18.) 13 development. 14 (AR As explained below, the credibility issue needs further The fact that Plaintiff’s doctor recommended that she join a gym 15 and work towards losing weight does not undermine Plaintiff’s 16 testimony that she was incapable of working due to pain. 17 5'-1" tall and weighed between 170 and 200 pounds during most of the 18 time covered by her medical records. 19 Court to imagine that any doctor would not recommend that Plaintiff 20 lose weight. 21 a gym or that she ever exercised. 22 wanted her to exercise and lose weight–-and believed that she could-- 23 not undermine Plaintiff’s testimony that she was in too much pain to 24 work. (AR 126.) Plaintiff is It is hard for the Further, there is no evidence that Plaintiff ever joined Thus, the fact that her doctor 25 The ALJ’s second reason for discounting Plaintiff’s testimony–- 26 that she stopped using Vicodin to treat it–-is equally unpersuasive. 27 Though, in general, a failure to take pain medication to treat 28 excessive pain is a legitimate reason for discounting a claimant’s 6 1 testimony, see, e.g., Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 2 1999), here, Plaintiff testified that the medication “interfered with” 3 her blood pressure and acid reflux and made her groggy. 4 451.) 5 Vicodin. 6 For this reason, the Court cannot conclude that the ALJ’s finding that 7 Plaintiff was exaggerating her claims of pain because she stopped 8 taking Vicodin is supported by the record. 9 (AR 449, The ALJ failed to address these explanations for discontinuing And there is no evidence in the record to contradict them. The ALJ’s third reason for rejecting Plaintiff’s testimony was 10 that she was not receiving medical care in July 2005. 11 is a proper reason for questioning a claimant’s pain testimony. 12 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 13 supported by the record. 14 medical check-ups in 2005, she did not receive care for her pain and 15 other alleged conditions from 2005-on. 16 (AR 18.) This See And it is Though Plaintiff was seen for routine (AR 343, 367-83.) The ALJ’s fourth reason for questioning Plaintiff’s testimony was 17 that an MRI of the lumbar spine in 2004 “revealed no recurrent canal 18 stenosis, a mild disc protrusion with no significant compromise of the 19 neural elements, and no neural impingement or compromise.” 20 The Court rejects this reason also. 21 Plaintiff had medically determinable impairments which could be 22 expected to produce some functional limitations. 23 done so, she was not permitted to reject Plaintiff’s testimony on the 24 basis that Plaintiff did not have a specified ailment--such as canal 25 stenosis, “compromise of neural elements,” or “neural impingement or 26 compromise”--that would support her pain allegations. 27 require such evidence, the ALJ was impermissibly substituting her own 28 medical opinion for that of the physicians of record, which is 7 (AR 18.) The ALJ had previously found that (AR 18.) Having In appearing to 1 prohibited. 2 1975); Arquette v. Astrue, 2010 WL 4916603, at *4 (C.D. Cal. Nov. 24, 3 2010). 4 See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. In the end, of the four reasons relied on by the ALJ for finding 5 that Plaintiff was not credible, only one of them is valid on its 6 face, i.e., the fact that Plaintiff did not receive treatment for her 7 alleged condition after July 2005. 8 to be strong support for the ALJ’s credibility determination, it is 9 not clear to the Court whether the ALJ would have found Plaintiff not Though the Court finds this reason 10 credible for this reason alone. See Carmickle v. Comm’r Soc. Sec. 11 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (noting that the “relevant 12 inquiry . . . is whether the ALJ’s decision remains legally valid,” 13 despite errors in the credibility analysis). 14 required on this issue as well. On remand, the ALJ should reconsider 15 the credibility determination. In doing so, she is not limited in her 16 analysis and may consider any factors she deems relevant in 17 determining credibility.1 As such, remand is 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff’s request that the case be reversed and remanded for the payment of benefits is denied. As the Court has already made clear, Plaintiff has not established her entitlement to benefits. Further, there are issues of fact that need to be addressed concerning Plaintiff’s credibility. 8 1 IV. 2 CONCLUSION 3 For these reasons, the Agency’s decision is reversed and the case 4 is remanded for further proceedings consistent with this memorandum 5 opinion and order. 6 IT IS SO ORDERED. 7 DATED: January 13, 2011. 8 9 10 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\POLANCO, 5550\Memo_Opinion.wpd 9
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