Rose Villa v. Michael J. Astrue, No. 2:2009cv03983 - Document 13 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. This matter will be remanded for further hearing consistent with this Memorandum Opinion. (rp)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 ROSE VILLA, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-03983-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) erred in 1 weighing the assessments of treating, examining and non- 2 examining physicians and erred in determining Plaintiff s 3 residual functional capacity ( RFC ); 4 2. 5 the ALJ properly considered the effect of Plaintiff s diabetes on her RFC; and 6 3. 7 8 Whether Whether the ALJ properly summarized and weighed Plaintiff s testimony and made proper credibility findings. (JS at 3.) 9 10 This Memorandum Opinion will constitute the Court s findings of 11 fact and conclusions of law. 12 concludes 13 Commissioner must be reversed. that for the After reviewing the matter, the Court reasons set forth, the decision of the 14 15 I 16 INTRODUCTION 17 A. Standard of Review. 18 The Commissioner s denial of benefits to Plaintiff is reviewed by 19 this Court on a substantial evidence basis; that is, the denial of 20 benefits is reversed if it is not supported by substantial evidence or 21 if it is based on the application of incorrect legal standards. 22 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. 23 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 24 25 B. Statement of the Case. 26 Plaintiff suffered an industrial injury on April 6, 2005 (AR 27 207). She was employed as a warehouse stocker from 1999 to May 2005. 28 She last worked in May 2005. (AR 153-154, 158.) 2 1 II 2 THE ALJ S ASSESSMENT OF THE EXAMINING AND NON-EXAMINING 3 PHYSICIANS OPINIONS DOES NOT WITHSTAND SCRUTINY ON REVIEW 4 In Plaintiff s first issue, she asserts that the ALJ erred in 5 weighing assessments of treating, examining and non-examining 6 physicians and in determining Plaintiff s RFC. (JS at 3, et seq.) 7 In his decision, the ALJ determined Plaintiff s RFC as permitting 8 her to lift and carry 20 pounds occasionally, 10 pounds frequently, 9 sitting, standing and walking six hours each in an eight-hour work 10 day. There are other exertional limitations which are assessed. (AR 11 16-17. 12 In making his determination, the ALJ stated the following: 13 In this case, the general consensus amongst medical 14 sources offering opinions, encompassing a period of 12 15 months or more, is that the [Plaintiff] remains capable of 16 performing light exertion or greater (exhibit citations). 17 I 18 assessment, specifically because it addresses all exertional 19 and non-exertional areas of functioning identified by the 20 regulations. 21 agreement, were more generalized and less specific. 22 accepted the State Agency evaluating consultant s The other sources, while an [sic] essential (AR 17.) 23 24 The ALJ reviewed the opinions of various examining and non- 25 examining physicians. Since the ALJ accepted the opinion of the State 26 Agency evaluating consultant s assessment, the Court will begin with 27 that. 28 in May 2006 that indicated Plaintiff could occasionally lift 20 Dr. Talcherkar, the State Agency physician, made an assessment 3 1 pounds, frequently lift 10 pounds, and stand and/or walk for a total 2 of six hours in an eight-hour work day. (AR 250.) 3 which the ALJ adopted, essentially, in his decision. It was this opinion 4 As noted, the ALJ specifically stated that the general consensus 5 amongst medical sources was that Plaintiff was capable of performing 6 light exertional work, or greater. (AR 17.) 7 accurate recitation of the evidence. 8 examined Plaintiff in the capacity of Qualified Medical Examiner 9 ( QME ). (AR 283-297.) Dr. Ram But this is not an In August 2006, Dr. Anant Ram performed a complete physical 10 examination, and concluded (after conducting his examination and 11 thoroughly reviewing Plaintiff s medical records) that Plaintiff was 12 limited to sedentary (seated) work with marked limitations in lifting 13 weight. (AR 296.) 14 The ALJ rejected Dr. Ram s opinion.1 15 The ALJ s assessment of Dr. Ram, as set forth in his decision, 16 indicates that Dr. Ram s credibility was completely devalued because 17 he examined Plaintiff for purposes of her workers compensation claim. 18 As such, the ALJ indicated that, 19 his opinions are not entitled to the weight generally 20 afforded 21 retained in a workers compensation litigation setting, which 22 is highly adversarial in nature where medical advocacy is 23 commonplace 24 regarding his impartiality and objectivity. 25 those ... of As treating a sources. result, I have Further, serious he was concerns (AR 17.) 26 1 27 28 It should be noted that Dr. Ram examined Plaintiff after the State Agency Consultant, Dr. Talcherkar, completed his report. Thus, Dr. Talcherkar did not have the benefit of Dr. Ram s report at the time he made his assessment. 4 1 Moreover, the ALJ further depreciated Dr. Ram s findings by 2 comparing them with another orthopedic consultant who performed a 3 consultative examination three weeks earlier (Dr. Rabinovich; see 4 infra) who came to a different conclusion regarding Plaintiff s RFC. 5 Without any basis in fact, the ALJ concluded that Dr. Rabinovich s 6 opinion was not to the [Plaintiff s], nor her attorney s liking. (AR 7 20.) 8 which indicates that Dr. Ram s opinion was specifically solicited by 9 Plaintiff or her attorney for purposes of obtaining a more favorable 10 The Court notes that there is absolutely nothing in this record evaluation or other opinion than that rendered by Dr. Rabinovich. 11 Dr. Rabinovich in fact did examine Plaintiff on July 27, 2006, 12 approximately three weeks before Dr. Ram s examination. (AR 272-282.) 13 The Court s comparison of the findings of Dr. Ram and Dr. Rabinovich 14 leads to a fair conclusion that they were substantially similar, 15 except 16 rendered. 17 QME. (AR 272.) Despite the fact that the examinations were performed 18 for purposes, 19 comments regarding Dr. Rabinovich, with regard to the reason for his 20 examination. 21 regard to examinations done on May 18 and May 25, 2005 by Dr. 22 Giacobetti, who also limited Plaintiff to modified less than sedentary 23 work. (AR 200-206.)2 in the assessments of exertional capacities which they Dr. Rabinovich also examined Plaintiff with regard to a identical the ALJ s decision makes no pejorative Such comments, however, are addressed by the ALJ with 24 25 26 27 28 2 Although Plaintiff s characterization of her first issue might appear to be based on an assessment that Dr. Giacobetti was her treating physician, for various reasons, the Court determines that Dr. Giacobetti was a consultative examiner. The record indicates that he saw Plaintiff on two occasions, spaced one week apart, and his reports are consistent with those prepared by consultative examiners, in that (continued...) 5 1 The ALJ rejected Dr. Giacobetti s assessment of Plaintiff s 2 ability to do less than sedentary work because he failed to have a 3 strong 4 condition, contemplated of treating sources by the regulations. (AR 5 21.) 6 its decision, fails to even accord Dr. Giacobetti credibility as an 7 examining physician. longitudinal understanding of the [Plaintiff s] medical This cryptic statement, as the Court will discuss in the body of 8 9 A. Applicable Law. 10 The appropriate manner in which to evaluate opinions of examining 11 and non-examining physicians was explicitly discussed by the Court in 12 Lester v. Chater, 69 F.3d 1453 (9th Cir. 1995). 13 indicated that the opinion of an examining physician is entitled to 14 greater 15 Further, 16 uncontradicted, in order to reject it, the Commissioner must provide 17 clear and convincing reasons. 18 must be supported by specific and legitimate reasons supported by 19 substantial evidence in the record. (Id. at 1464, citing Andrews v. 20 Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). weight where than the the opinion opinion of of an a There, the Court non-examining examining physician. physician is Where contradicted, the rejection 21 Social Security regulations make it clear that in making a 22 determination of disability, every medical opinion must be evaluated. 23 (See 20 C.F.R. §404.1527(d).) 24 a physician s opinion depends upon the extent to which it is supported Moreover, the weight that is given to 25 26 27 28 2 (...continued) they do not include indications of continuing treatment, or even recommendations for treatment. After the second examination, Dr. Giacobetti indicates that Plaintiff would return in three weeks, but there is no indication that she in fact did. 6 1 by specific and clinical findings. (20 C.F.R. §404.1527(d)(3).) 2 Nowhere in the regulations, or in any reported case decision, is 3 there an articulated principle that a physician who renders an opinion 4 in a Workers Compensation proceeding is entitled to depreciated 5 credibility with regard to his or her findings and conclusions. 6 fact, the opposite is true. 7 ratings are not controlling in disability cases that are decided under 8 the Social Security Act, they must still be evaluated, consistent with 9 all medical opinions. 10 In While workers compensation disability See Macre v. Chater, 93 F.3d 540, 544 (9th Cir. 1996); Booth v. Barnhart, 181 F.Supp.2d 1099 (C.D. Cal. 2002). 11 12 B. Analysis. 13 The ALJ s decision-making protocol here is somewhat troubling to 14 the Court. The ALJ was responsible for evaluating a series of 15 opinions of consulting examining physicians. 16 evaluated the opinion of a non-examining State Agency physician, 17 ultimately adopting that physician s opinion. The problem is that two 18 of the three opinions of the examining physicians (that is, the 19 opinions of Dr. Ram and Dr. Giacobetti) assess that Plaintiff was 20 capable of less than light work, while the opinion of Dr. Rabinovich 21 assessed an ability to do light work. 22 performed independent physical examinations. Yet, the opinions of Dr. 23 Ram and Dr. Giacobetti were almost completely depreciated for improper 24 reasons; in Dr. Ram s case, because he performed an examination for 25 workers compensation purposes, and in Dr. Giacobetti s case, because 26 he didn t have a strong longitudinal understanding of Plaintiff s 27 medical condition. But no consultative examiner has a longitudinal 28 understanding as would be characteristic of a treating physician. 7 In addition, the ALJ Each of these physicians 1 This is no reason to depreciate the opinion of one consultative 2 examiner as against another. Moreover, the ALJ s rejection of Dr. Ram 3 is 4 compensation cases are highly adversarial in nature as a basis to 5 depreciate Dr. Ram s opinion has no place in a Social Security 6 decision. Moreover, there is no evidence in the record that Plaintiff 7 or his counsel sought Dr. Ram s opinion three weeks after she was 8 examined by Dr. Rabinovich for any improper purpose. 9 absolutely nothing in the record to substantiate the ALJ s speculative 10 conclusion that Dr. Ram s opinion was sought because Dr. Rabinovich s 11 conclusions 12 Unfortunately, these comments, which are repeated numerous times in 13 the ALJ s decision, reflect an apparent bias, either against opinions 14 of physicians who are employed in the workers compensation context, or 15 against 16 Clearly, 17 determination in order to allow an unbiased and proper evaluation of 18 the conflicting opinions of examining, non-treating physicians. 19 Court, however, does not have confidence that this ALJ can render an 20 unbiased opinion with regard, particularly, to Dr. Ram, or even to Dr. 21 Giacobetti. 22 case necessary step of ordering that on remand, this matter be 23 assigned to a new ALJ. extreme and were Plaintiff this speculative. not to or case her must The Plaintiff attorney be ALJ s or as remanded her comment attorney s having for that improper further workers There is liking. motives. hearing and The For that reason, the Court will take the rare but in this 24 25 III 26 THE ALJ DID NOT PROPERLY CONSIDER THE EFFECT OF PLAINTIFF S DIABETES 27 It appears that Plaintiff was first diagnosed with diabetes in 28 1996. (See AR at 424.) In discussing this illness, however, the ALJ 8 1 indicated that there is little medical evidence that Plaintiff s 2 diabetes 3 exertional work. (AR 18.) 4 correctness of this conclusion, for reasons to be discussed herein. would preclude her from performing a range of light The Court has significant doubt about the 5 The ALJ relied heavily upon an extensive report by Dr. Hirsch, a 6 board-certified physician in internal medicine, performed on November 7 3, 2006. (AR 423-480.) 8 Dr. Hirsch s lengthy report is that if Plaintiff were compliant with 9 her medication regimens, her diabetes could be controlled. Much of the premise for the ALJ s analysis of Indeed, 10 the Commissioner begins his portion of the discussion of this issue by 11 asserting that diabetes is a treatable medical condition that, 12 properly managed, does not preclude an individual from working. (JS 13 at 13, citation omitted.) 14 report indicates that in Plaintiff s case, it is unclear whether such 15 therapies as insulin administration would have been effective with her 16 condition, and certainly, there was also a very substantial question 17 as to whether they would currently be effective. 18 purposes of determining her current disability, the effect on her 19 physical condition and ability to function must be understood. But, a closer examination of Dr. Hirsch s Moreover, for 20 Dr. Hirsch s discussion includes the following important section: 21 It is important that non-physician readers of these 22 reports understand that [Plaintiff] has an extremely severe 23 case of the metabolic syndrome. 24 the 25 hyperglycemia. 26 often obese and have significant insulin resistance, such 27 that typical doses of insulin are ineffective. 28 that [Plaintiff] has never manifested adequate control of triad of The metabolic syndrome is hypertension, hyperlipidemia, and Individuals with metabolic syndrome are 9 One can see 1 2 her diabetes. (AR 465.) 3 4 Dr. Hirsch continues by indicating that Plaintiff s diabetes has 5 been at the extremes of poor control. 6 [Plaintiff] her life. 7 466.) 8 9 These extremes almost cost The poor control has continued, unabated. (AR Dr. Hirsch opined that Plaintiff has diabetic end organ damage in her eyes. He further concluded that she has diabetic nephrophathy. 10 He stated, this diabetic illness has pursued its natural history; 11 this is the manner by which diabetes ravages millions of Americans 12 annually. (Id.) 13 In other words, the Commissioner s premise, which seems to be 14 that the effects of diabetes on Plaintiff s physical health can be 15 attributed to her willful noncompliance with her medication regimen, 16 appears to be an unsupported premise. 17 report 18 corresponding characteristic of significant insulin resistance. (See 19 AR at 465. It is facile to simply attribute Plaintiff s apparent dire 20 health with regard to her diabetes to, for example, willful dietary 21 noncompliance, as the Commissioner seems to argue. (See JS at 14-15.) 22 Whether or not Dr. Hirsch concluded that Plaintiff is disabled on an 23 industrial basis does not resolve the question of whether Plaintiff s 24 RFC 25 Commissioner routinely (and correctly) argues that an assessment of 26 disability by a physician is not entitled to deference from the Social 27 Security Administration, since it is not the physician who determines 28 disability in the Social Security context. is is that impacted Plaintiff by her has a metabolic diabetes. 10 A fair reading of Dr. Hirsch s The syndrome Court which notes has that a the Yet, in this case, the 1 Commissioner avidly cites Dr. Hirsch as being the authority on whether 2 or not Plaintiff is disabled. Finally, this ALJ s obvious aversion to 3 physicians 4 compensation context permeates his decision, including his analysis of 5 any impact of Plaintiff s diabetes on her RFC. 6 who are associated with a claimant in the workers On remand, the issue of any effect on Plaintiff s RFC from her 7 diabetes will be examined de novo. 8 precedental value whatsoever. 9 This ALJ s decision will have no The Court will also here address Plaintiff s third issue, which 10 concerns the ALJ s credibility assessment. 11 be 12 credibility will have to be re-weighed de novo on remand. 13 depreciating Plaintiff s credibility, however, the ALJ improperly 14 relied upon Plaintiff s alleged chronic noncompliance with her 15 diabetes medications, stating that chronic noncompliance simply is 16 not 17 diabetes-related symptoms, as the [Plaintiff] alleges. (AR 25.) 18 the Court has exhaustively discussed with regard to the second issue, 19 there are serious concerns raised about whether Plaintiff is willfully 20 noncompliant, and, moreover, whether diabetes medications would have 21 controlled her diabetes. Moreover, utilizing conflicting MMPI results 22 to assess Plaintiff s credibility is misplaced. 23 administered by psychologists in the workers compensation context, 24 both on Plaintiff s side, and on the employer s side, and the results 25 were conflicting. 26 exaggerate her psychological disabilities, but attempted to minimize 27 them and present herself in a favorable light. Nevertheless, the 28 Commissioner concludes that this is still evidence of untruthfulness. devoted to consistent a discussion with someone of who this is Substantial time need not issue, truly since Plaintiff s experiencing In profound As The MMPI testing was There is evidence, however, that Plaintiff did not 11 1 Simply put, Plaintiff did not tell the truth. (JS at 21.) 2 somewhat cynical to the Court that if an individual tries to present 3 herself in a favorable light, and does not exaggerate debilitating 4 psychological symptoms, that individual should be punished with a poor 5 credibility rating. 6 addressed de novo on remand. 7 8 9 Nevertheless, this is another issue which can be For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 10 11 12 It seems DATED: December 16, 2009 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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