Allen Brasher v. Michael J. Astrue, No. 2:2009cv04853 - Document 26 (C.D. Cal. 2010)
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. IT IS SO ORDERED. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Allen Brasher v. Michael J. Astrue Doc. 26 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 ALLEN BRASHER, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-04853-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”) properly Dockets.Justia.com 1 2 rejected the opinions of the treating physicians; 2. Whether 3 4 the ALJ erred in determining Plaintiff’s credibility; 3. Whether the ALJ properly considered the combined effects of 5 Plaintiff’s impairments 6 when determining his residual functional capacity. 7 8 9 This Memorandum Opinion will constitute the Court’s findings of fact and conclusions of law. 10 concludes that for the 11 After reviewing the matter, the Court reasons set forth, the decision of the Commissioner must be reversed. 12 13 I 14 THE ALJ PROPERLY EVALUATED THE OPINIONS OF TREATING, 15 EXAMINING, AND NON-TREATING PHYSICIANS 16 17 In his first issue, Plaintiff asserts, generally, that the ALJ failed to properly reject the opinions of his treating physicians. 18 19 A. History of Relevant Medical Treatment. 20 On February 27, 2003, Plaintiff was evaluated in the emergency 21 room at Los Robles Regional Medical Center by Dr. Tchejeyan following 22 an on-the-job injury. In a report dated April 23, 2004, Dr. Tchejeyan 23 reviewed his own treatment of Plaintiff, along with other treatment 24 records by various physicians and providers. (AR 261-72.) 25 Dr. Tchejeyan assessed work restrictions of the following nature: 26 no sitting/standing/walking greater than 30 minutes; no bending at the 27 waist; no lifting greater than 10 pounds; no pushing/pulling greater 28 than 15 pounds. (AR 270-71.) This is consistent with the requirements 2 1 of sedentary work, which involve lifting of no more than 10 pounds, 2 and occasional lifting or carrying articles like docket files, ledgers 3 and small tools. (See 20 C.F.R. §404.1567(a); SSR 83-10.) 4 Tchejeyan noted that on April 5, 2003, Plaintiff underwent a lumbar 5 spine epidural injection by Dr. Lipel, which, according to Plaintiff, 6 did not provide significant relief of his symptoms, but in fact 7 actually 8 referrals to a spine specialist as well as to a diabetes specialist. 9 The spine specialist, Dr. deGrange, evaluated Plaintiff on May 6, 2003 increased them. (AR 362.) Dr. Tchejeyan Dr. recommended 10 and recommended EMG/nerve conduction studies. 11 noted, however, this specialist did not anticipate any need for 12 surgery based on the current MRI findings. (AR 262.) 13 As Dr. Tchejeyan later Dr. Tchejeyan’s restrictive functional limitations were largely 14 contradicted by other examining and treating physicians. 15 performed a consultative internal medicine evaluation on September 18, 16 2007, and Dr. Siciarz limited Plaintiff to pushing, pulling, lifting 17 and carrying 50 pounds occasionally and 25 pounds frequently; standing 18 and walking limited to six hours of an eight-hour day with normal 19 breaks, with unrestricted sitting; and no restrictions in terms of 20 hearing, seeing, speaking, or using both hands for performing fine and 21 gross manipulation. (AR 16, 194-98, at 197.) This constitutes greater 22 functional 23 conclusions were adopted by the State Agency physician, Dr. London (AR 24 216, 219), who found Plaintiff capable of medium exertional activity. 25 Finally, when Plaintiff’s voluminous medical records were examined by 26 Dr. Silbart at the request of his workers’ compensation counsel on 27 November 10, 2006, he noted that Plaintiff had been treated by Dr. 28 Litoff in 2005 and that, despite complaining of constant pain in his ability than was assessed 3 by Dr. Dr. Siciarz Tchejeyan. These 1 low back, and receiving from Dr. Litoff a diagnosis of lumbosacral 2 sprain/strain, 3 lumbosacral spine, the only work restrictions assessed by Dr. Silbert 4 were that Plaintiff should avoid heavy lifting and should do no 5 repetitive bending and stooping activities. (AR 145-154, at 154.) 6 Again, this constitutes greater functional ability than what was 7 assessed by Dr. Tchejeyan. (See SSR 83-10p; 20 C.F.R. §404.1567.) resolving, and degenerative disc disease of the 8 9 B. ALJ’s Decision. 10 The ALJ referenced Dr. Tchejeyan’s findings, as a treating 11 physician, and depreciated his reliance on them as against the State 12 Agency physician, consultative examiner (“CE”), and another treating 13 physician (see, infra) based on the following discussion in the 14 decision: 15 “The extreme limitations [assessed by Dr. Tchejeyan] rejected lack 16 are 17 pathology in the record that would justify the restrictions 18 indicated. 19 appear to be the basis for the extreme limitations indicated 20 ... 21 treating physicians responded with limited and conservative 22 treatment. 23 response that would be expected if the limitations were as 24 severe as described by [Dr. Tchejeyan].” 25 inasmuch as there is a of medical The subjective complaints of the [Plaintiff] The [Plaintiff’s] relevant medical records show that Such treatment is inconsistent with the medical (AR 16.) 26 27 C. Analysis. 28 The issue is whether the stated reasons set forth by the ALJ for 4 1 his depreciation of Dr. Tchejeyan’s functional assessment are 2 supported by specific and legitimate reasons. 3 objective medical evidence fails to fully support these restrictions. 4 (AR 15.) 5 the findings of the CE, Dr. Siciarz (who, as Plaintiff correctly 6 notes, only examined medical evidence), the State Agency physician, 7 and Dr. Silbert. 8 the reports of Drs. Hersel and Lipel, their reports only indicate 9 examinations and medication refills (in the case of Dr. Hersel), and 10 as to Dr. Lipel, only set forth the fact that he performed two 11 epidural procedures. 12 specific functional limitations in their reports. The ALJ found that the As the Court has already noted, the ALJ more fully credited While Plaintiff devotes substantial discussion to Neither of these physicians identified any 13 The basic legal proposition concerning evaluation of various 14 levels of medical providers (treating, examining and non-treating), 15 has often been set forth by the Ninth Circuit, and is generally stated 16 as a requirement that the ALJ must set forth specific, legitimate 17 reasons for rejecting the opinion of a treating physician in favor of 18 that of an examining physician. See Thomas v. Barnhart, 278 F.3d 947, 19 956-57 (9th Cir. 2002); Valentine v. Commissioner Social Sec. Admin., 20 574 F.3d 685, 692 (9th Cir. 2009). 21 opinion of a treating physician is not entitled to unrestricted 22 deference. See Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 23 In this case, the ALJ did provide specific and legitimate reasons 24 in his decision for rejecting Dr. Tchejeyan’s conclusions. As already 25 noted, the ALJ compared these conclusions to other opinions of 26 examining and non-examining physicians, and found that Dr. Tchejeyan’s 27 restrictions were singularly conservative in comparison with that of 28 the other doctors. It is certainly the case that the Further, the ALJ noted that Dr. Tchejeyan placed 5 1 excessive reliance on Plaintiff’s subjective statements, and that his 2 treatment 3 treatment for extreme complaints of recurring pain. (AR 16, 270, 271.) 4 Indeed, this Administrative Record demonstrates a plethora of medical 5 information upon which the ALJ could and did rely. 6 conclusion that the objective medical evidence did not support Dr. 7 Tchejeyan’s restrictive functional limitations is substantiated by 8 various of these records, including an EMG performed by Dr. Yang which 9 showed mild bilateral neuropathy with no evidence of lumbosacral 10 radiculopathy (AR 263, 281); Dr. Chiu’s neurological examination 11 revealing straight leg raising at 75 degrees on the right and 65 12 degrees of the left, cranial nerves within normal limits, muscle 13 strength grossly intact, gait normal, tandem normal, and alternative 14 movement rates and coordination good. (AR 129, 130.) 15 found that Plaintiff’s movements were “normal” and that he did not 16 require use of an assistive device for walking. (AR 195.) 17 found that Plaintiff could sit comfortably and stand and sit without 18 difficulty. (AR 196.) 19 noted generally unremarkable results. (AR 196.) 20 good 21 bilaterally. (Id.) range records of only motion reflected very limited and conservative The ALJ’s Dr. Siciarz He also Dr. Siciarz’ examination of Plaintiff’s back and straight leg He had a reasonably raising was 45 degrees, He had normal gait and station. (AR 197.) 22 In sum, the Court cannot find that the ALJ’s conclusions based on 23 his evaluation of treating, non-treating and examining physicians is 24 not supported by substantial evidence in the record, and that specific 25 and legitimate reasons were provided in the decision for the ALJ’s 26 rejection of Dr. Tchejeyan’s opinion. 27 // 28 // 6 1 II 2 THE ALJ’S CREDIBILITY ASSESSMENT AS TO PLAINTIFF 3 DOES NOT WITHSTAND SCRUTINY 4 5 In Plaintiff’s second issue, he asserts that the ALJ erred in determining his credibility. 6 The portion of the ALJ’s decision which addresses credibility 7 findings is quoted in the JS (Id. at 24), and is found at AR 15. 8 summary, while the ALJ found that the evidence as to Plaintiff’s 9 medically determinable impairments could reasonably be expected to 10 cause the alleged symptoms, he concluded that Plaintiff’s statements 11 concerning 12 symptoms are not credible to the extent they are inconsistent with the 13 determined residual functional capacity (“RFC”). (Id.) Three discrete 14 reasons are set forth in the decision in support of his credibility 15 assessment, summarized as follows: 16 1. intensity, persistence and limiting effects of In these That no determination of Plaintiff’s RFC limitation was made 17 by 18 Plaintiff to the degree asserted by him; 19 2. 20 qualified treating physician that would limit Plaintiff testified he is unable to sit for more than 20 to 30 minutes but drove 75 miles to the hearing; 21 3. 22 23 any Plaintiff is not currently taking pain medication, even over the counter. (Id.) 24 25 At the hearing, Plaintiff testified extensively as to his pain. 26 He stated that he has pain going down his right leg and sometimes also 27 down his left leg and in his low back. (AR 25.) 28 about ten minutes at a time and can sit for “probably 20, maybe 30 7 He can stand for 1 minutes before I have to move.” (AR 28.) He does not cook, and can 2 only lift five to ten pounds. (AR 28-29.) 3 concentration. (AR 36.) The pain affects his 4 In a disability report (undated, but prepared after June 20, 5 2007), Plaintiff reported that he can’t walk far, can’t stand for 6 long, can’t sit or bend or reach, and cannot lift very much. (AR 111.) 7 In another document entitled “Disability Report - Field Office” (AR 8 117-20), the employee preparing the report noted as to Plaintiff that, 9 “His breathing seemed labored. 10 interview due to pain. 11 interview. 12 He stood up several times during the prepared on June 18,2007. 13 14 He seemed to be in a lot of pain during the He walked very slowly.” (AR 119.) This report was In order to evaluate the ALJ’s credibility assessment, the legal standards utilized will be briefly summarized. 15 Subjective complaints of pain or other symptomology in excess of 16 what an impairment would normally be expected to produce are subject 17 to the credibility assessment of an ALJ. 18 F.3d 853, 856-57 (9th Cir. 2001). An ALJ’s assessment of pain severity 19 and claimant credibility is entitled to “great weight.” 20 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 21 528, 531 (9th Cir. 1985). 22 not reject a claimant’s subjective complaints based solely on a lack 23 of 24 severity.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); see 25 also, Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 26 order 27 credible, an ALJ “must specifically make findings that support this 28 conclusion,” objective to medical find that Bunnell, Weetman v. When determining credibility, the ALJ “may evidence a Rollins v. Massanari, 261 to claimant’s 947 F.2d at 8 fully corroborate subjective 345, and the complaints provide alleged are “clear In not and 1 convincing reasons.” Rollins, 261 F.3d at 857; see also Varney v. 2 Secretary of Health & Human Services, 846 F.2d 581, 584 (9th Cir. 1988) 3 (requiring the ALJ to put forward “specific reasons” for discrediting 4 a claimant’s subjective complaints). 5 The absence of objective evidence to corroborate a claimant’s 6 subjective complaints, however, does not by itself constitute a valid 7 reason for rejecting her testimony. Tonapetyan v. Halter, 242 F.3d at 8 1147. 9 subjective testimony of excess symptomology. 10 11 However, weak objective support can undermine a claimant’s See e.g., Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998). Implementing regulations prescribe factors which should be 12 considered in determining credibility as to self-reported pain and 13 other symptoms. 14 considered are specified to include a claimant’s daily activities 15 (“ADL”); the location, duration, frequency and intensity of pain or 16 other symptoms; precipitating and aggravating factors; the type, 17 dosage, effectiveness and side effects of any medication; treatment 18 received; and measures taken to relieve pain. In 20 C.F.R. §404.1529(c)(3), the factors to be 19 The regulations also specify that consideration should be given 20 to inconsistencies or contradictions between a claimant’s statements 21 and the objective evidence: 22 “We will consider your statements about the intensity, 23 persistence, and limiting effects of your symptoms, and we 24 will evaluate your statements in relation to the objective 25 medical 26 conclusion as to whether you are disabled. We will consider 27 whether there are any inconsistencies in the evidence and 28 the extent to which there are any conflicts between your evidence and other 9 evidence, in reaching a 1 statements and the rest of the evidence, including your 2 history, the signs and laboratory findings, and statements 3 by your treating or nontreating source or other persons 4 about how your symptoms affect you.” 5 (20 C.F.R. §404.1529(c)(4).) 6 7 A. 8 The three reasons given by the ALJ to discredit Plaintiff’s 9 10 Analysis. credibility will be individually examined. 1. That no determination of a residual functional capacity 11 limitation was made by any qualified treating physician that 12 would limit Plaintiff to the degree asserted by him. (AR 13 15.) 14 Dr. Tchejeyan opined that Plaintiff could perform only sedentary 15 work, that he could not sit, stand, or walk for longer than 30 16 minutes, that he could not bend at the waist, that he could not lift 17 anything heavier than ten pounds, and that he could not push or pull 18 anything heavier than 15 pounds. (AR 270, 271.) 19 Certainly, Dr. Tchejeyan is a qualified treating physician. 20 Although the Court has already determined that the ALJ rejected Dr. 21 Tchejeyan’s functional assessments based on substantial evidence, the 22 fact is that Plaintiff’s pain complaints were not significantly in 23 contradiction with Dr. Tchejeyan’s assessment. 24 explication of the ALJ’s reasoning is that Plaintiff’s pain complaints 25 exceeded in severity the assessment of his physical condition rendered 26 by the physicians found to be most valid by the ALJ. 27 rubric, however, and as noted in the Court’s recitation of applicable 28 legal authority, this contradiction, in and of itself, would not 10 Perhaps a clearer Even under that 1 support an adverse credibility finding. Therefore, the Court must 2 turn to the other reasons cited by the ALJ. 3 4 2. Plaintiff testified that he was unable to sit for more than 5 20 - 30 minutes yet drove 75 miles to the hearing in one 6 hour and 15 minutes. 7 At the hearing, the ALJ elicited from Plaintiff that he drove to 8 the hearing, which took an hour and 15 minutes. (AR 23.) Although 9 Plaintiff testified that he lives in his sister’s house in Simi 10 Valley, there is nothing apparent in the record to indicate that this 11 was his point of origin for the drive to the hearing. (AR 23.) 12 the ALJ’s indication that Plaintiff drove 75 miles to the hearing 13 appears to be something outside the record. 14 did drive 75 miles in one hour and 15 minutes, there were no questions 15 posed to him about it during the hearing, or any indication in the 16 record whether or not he took a break during that drive. 17 he did not, the possibility that he drove for an hour and 15 minutes 18 to attend a very important hearing may simply be a reflection that he 19 drove while in pain. 20 whether or not he was, on a single occasion, able to drive for over an 21 hour is not something that is transferrable to the requirements of a 22 job which must be performed eight hours per day, five days a week. 23 (See JS at 28, and cases cited.) Thus, But, even if Plaintiff And even if As Plaintiff convincingly argues to the Court, 24 25 3. The third and last reason cited by the ALJ was that 26 Plaintiff was not presently taking pain medication, even over the 27 counter medication. 28 Plaintiff’s testimony at the hearing that he was treating at the free This conclusion, however, is contradicted by 11 1 clinic, which is not able to prescribe certain pain medications that 2 he needed. (AR 29-31.) 3 clinic gave him Vicodin, which “doesn’t work.” (AR 34.) It would seem 4 evident that if powerful prescription pain medications did nothing for 5 Plaintiff’s pain, then over-the-counter medications would not do any 6 better. 7 the hearing, that he was not able to afford prescription medications. 8 This is an adequate explanation for failure to avail himself of such 9 treatment. (See Warre v. Commissioner, 439 F.3d 1001, 1006 (9th Cir. 10 Moreover, Plaintiff testified that the free Further, Plaintiff provided testimony, not contradicted at 2006); SSR 82-59.) 11 Based on the foregoing analysis, the Court concludes that the 12 ALJ’s credibility assessment does not withstand scrutiny, and the 13 matter must be remanded for further hearing. 14 novo assessment of Plaintiff’s credibility will be made. At that hearing, a de 15 The Court will only briefly address Plaintiff’s third issue, 16 which asserts that the ALJ did not properly consider the combined 17 effect of his impairments when determining his RFC. 18 Plaintiff focuses on his obesity and his pain complaints. 19 have already been addressed by the Court. 20 all the treating and examining physicians clearly assessed Plaintiff 21 in 22 Plaintiff’s burden to demonstrate that his obesity is a cause of 23 certain functional impairments or deficits. 24 400 F.3d 676 (9th Cir. 2005). conjunction with their recognition In particular, The latter As to Plaintiff’s obesity, of his obesity. It is See Burch v. Barnhart, 25 There is an observation by Dr. Tchejeyan that Plaintiff should 26 undergo a weight loss program which “would potentially unload the 27 lumbar spine, and therefore, minimize the existing symptoms from the 28 underlying pathology.” (AR 245.) Even though the ALJ rejected Dr. 12 1 Tchejeyan’s functional limitations, the recommendation that Plaintiff 2 lose weight, and that there might be a connection between Plaintiff’s 3 pain and his obesity should be looked at more closely on remand. 4 5 6 For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 7 8 9 DATED: November 16, 2010 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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