Martha D. Arellano v. Michael J. Astrue, No. 2:2009cv06305 - Document 20 (C.D. Cal. 2010)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jacqueline Chooljian, The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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Martha D. Arellano v. Michael J. Astrue Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARTHA D. ARELLANO, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 09-6305 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 I. SUMMARY 20 On September 2, 2009, plaintiff Martha Arellano ( plaintiff ) filed a 21 Complaint seeking review of the Commissioner of Social Security s denial of 22 plaintiff s application for benefits. The parties have consented to proceed before a 23 United States Magistrate Judge. 24 This matter is before the Court on the parties cross motions for summary 25 judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The 26 Court has taken both motions under submission without oral argument. See Fed. 27 R. Civ. P. 78; L.R. 7-15; September 3, 2009 Case Management Order ¶ 5. 28 /// 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum and Opinion and Order of Remand because the 4 Administrative Law Judge ( ALJ ) erred in evaluating the medical evidence and 5 plaintiff s credibility. 6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 7 DECISION 8 On July 11, 2006, plaintiff filed an application for Disability Insurance 9 Benefits. (Administrative Record ( AR ) 129-32). Plaintiff asserted that she 10 became disabled on February 7, 2006, due to fibromyalgia, osteoarthritis, and 11 anxiety. (AR 156). The ALJ examined the medical record and heard testimony 12 from plaintiff, who was represented by counsel, on January 12, 2009. (AR 33-76). 13 On February 12, 2009, the ALJ determined that plaintiff was not disabled 14 through the date of the decision. (AR 12-22). Specifically, the ALJ found: 15 (1) plaintiff suffered from the following severe impairments: small left parietal 16 meningioma; fibromyalgia; essential hypertension, well controlled; macular 17 degeneration of the left eye, stable; history of mild Bouchard s nodules in the 18 hands; bilateral small plantar calcaneal spurs; obesity; and history of restless leg 19 syndrome (AR 14-15); (2) plaintiff s impairments, considered singly or in 20 combination, did not meet or medically equal one of the listed impairments (AR 21 17); (3) plaintiff retained the residual functional capacity to perform light work1 22 with certain limitations (AR 18);2 (4) plaintiff could perform her past relevant 23 24 25 26 27 28 1 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 404.1567(b). 2 The ALJ determined that plaintiff has the residual functional capacity to lift twenty pounds occasionally and ten pounds frequently. She can stand and walk, with normal breaks, for a total of six hours in an eight-hour workday, and she can sit, with normal breaks, for a total of six hours in an eight-hour workday. She must refrain from performing work at dangerous heights, around dangerous moving machinery, or in extreme temperatures of heat or cold. She (continued...) 2 1 work (AR 21); and (5) plaintiff s allegations regarding her limitations were not 2 entirely credible. (AR 20-21). 3 The Appeals Council denied plaintiff s application for review. (AR 1-3). 4 III. APPLICABLE LEGAL STANDARDS 5 A. 6 To qualify for disability benefits, a claimant must show that she is unable to Sequential Evaluation Process 7 engage in any substantial gainful activity by reason of a medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of at least twelve 10 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 11 § 423(d)(1)(A)). The impairment must render the claimant incapable of 12 performing the work she previously performed and incapable of performing any 13 other substantial gainful employment that exists in the national economy. Tackett 14 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 15 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 16 sequential evaluation process: 17 (1) 18 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 19 (2) Is the claimant s alleged impairment sufficiently severe to limit 20 her ability to work? If not, the claimant is not disabled. If so, 21 proceed to step three. 22 (3) Does the claimant s impairment, or combination of 23 impairments, meet or equal an impairment listed in 20 C.F.R. 24 Part 404, Subpart P, Appendix 1? If so, the claimant is 25 disabled. If not, proceed to step four. 26 /// 27 2 28 (...continued) may perform work at a stress level of five on a scale of one to ten, where one is described as a night dishwasher . . . and ten is described as the work of an air traffic controller . . . . (AR 18). 3 1 (4) Does the claimant possess the residual functional capacity to 2 perform her past relevant work? If so, the claimant is not 3 disabled. If not, proceed to step five. 4 (5) Does the claimant s residual functional capacity, when 5 considered with the claimant s age, education, and work 6 experience, allow her to adjust to other work that exists in 7 significant numbers in the national economy? If so, the 8 claimant is not disabled. If not, the claimant is disabled. 9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 11 B. 12 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 13 benefits only if it is not supported by substantial evidence or if it is based on legal 14 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 15 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 16 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 17 mind might accept as adequate to support a conclusion. Richardson v. Perales, 18 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 19 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 20 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 21 To determine whether substantial evidence supports a finding, a court must 22 consider the record as a whole, weighing both evidence that supports and 23 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 24 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 25 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 26 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 27 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 28 /// 4 1 IV. DISCUSSION 2 A. 3 Plaintiff contends that the ALJ improperly evaluated the medical evidence Medical Evidence 4 in rejecting the opinions of her treating physician, Dr. Janoian, and an examining 5 physician, Dr. Srinivasan. (Plaintiff s Motion at 2-17). The Court agrees that the 6 ALJ erred in rejecting Dr. Janoian s opinion. 7 8 1. Pertinent Law In Social Security cases, courts employ a hierarchy of deference to medical 9 opinions depending on the nature of the services provided. Courts distinguish 10 among the opinions of three types of physicians: those who treat the claimant 11 ( treating physicians ) and two categories of nontreating physicians, namely 12 those who examine but do not treat the claimant ( examining physicians ) and 13 those who neither examine nor treat the claimant ( nonexamining physicians ). 14 Lester v. Chater, 81 F.3d 821, 830 (9th Cir.), as amended (1996) (footnote 15 reference omitted). A treating physician s opinion is entitled to more weight than 16 an examining physician s opinion, and an examining physician s opinion is 17 entitled to more weight than a nonexamining physician s opinion. See id. In 18 general, the opinion of a treating physician is entitled to greater weight than that of 19 a non-treating physician because a treating physician is employed to cure and has 20 a greater opportunity to know and observe the patient as an individual. Morgan 21 v. Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 22 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 23 A treating physician s opinion is not, however, necessarily conclusive as to 24 either a physical condition or the ultimate issue of disability. Magallanes v. 25 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 26 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician s opinion is not 27 contradicted by another doctor, it may be rejected only for clear and convincing 28 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 5 1 quotations omitted). An ALJ can reject the opinion of a treating physician in favor 2 of a conflicting opinion of another examining physician if the ALJ makes findings 3 setting forth specific, legitimate reasons for doing so that are based on substantial 4 evidence in the record. Id. (citation and internal quotations omitted). The ALJ 5 must do more than offer his conclusions. Embrey v. Bowen, 849 F.2d 418, 6 421-22 (9th Cir. 1988). He must set forth his own interpretations and explain 7 why they, rather than the [physician s], are correct. Id.; see Thomas v. Barnhart, 8 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out detailed 9 and thorough summary of facts and conflicting clinical evidence, stating his 10 interpretation thereof, and making findings) (citations and quotations omitted). 11 Broad and vague reasons for rejecting a treating physician s opinion do not 12 suffice. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir.1989). 13 When they are properly supported, the opinions of physicians other than 14 treating physicians, such as examining physicians and nonexamining medical 15 experts, may constitute substantial evidence upon which an ALJ may rely. See, 16 e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (consultative 17 examiner s opinion on its own constituted substantial evidence, because it rested 18 on independent examination of claimant); Morgan, 169 F.3d at 600 (testifying 19 medical expert opinions may serve as substantial evidence when they are 20 supported by other evidence in the record and are consistent with it ). 21 22 2. Analysis As the ALJ noted, Dr. Janoian assessed plaintiff with a greater degree of 23 limitation than did any other physician. Among other things, Dr. Janoian opined 24 that plaintiff could sit or stand for only thirty minutes at a time; could sit for a total 25 of about four hours and stand for a total of about two hours in an eight hour day; 26 needed to walk around for five minutes every twenty to thirty minutes; needed to 27 shift at will from sitting, standing, or walking; would likely need to take four or 28 five unscheduled breaks of up to forty minutes during an eight hour day; needed to 6 1 elevate her legs with prolonged sitting; could occasionally lift only weights of 2 fewer than ten pounds; could not perform any repetitive reaching, handling, or 3 fingering; and would likely miss work more than three times per month because of 4 her impairments. (AR 363-68). 5 The ALJ provided two reasons for rejecting Dr. Janoian s opinion. First, he 6 stated that Dr. Janoian s opinion is not fully supported by the objective evidence 7 or his own treatment notes. (AR 19 (citing Exhibits 2F, 10F, 13F, and 23F).) 8 This reason, without more and on the facts of this case, does not provide the level 9 of specificity required for rejecting an opinion of a treating physician. See 10 Embrey, 849 F.2d at 421-23 ( To say that medical opinions are not supported by 11 sufficient objective findings or are contrary to the preponderant conclusions 12 mandated by the objective findings does not achieve the level of specificity our 13 prior cases have required, even when the objective factors are listed seriatim. The 14 ALJ must do more than offer his conclusions. He must set forth his own 15 interpretations and explain why they, rather than the doctors , are correct. ); see 16 also McAllister, 888 F.2d at 602 (finding that rejecting the treating physician s 17 opinion on the ground that it was contrary to clinical findings in the record was 18 broad and vague, failing to specify why the ALJ felt the treating physician s 19 opinion was flawed ). Moreover, Dr. Janoian specifically cited objective medical 20 findings that supported his opinion, including deformity of small joints, 21 tenderness and spasm of paralumbar and paravertebral muscles, a severely 22 limited range of motion in all aspects of active motion, and bilateral swelling of 23 the wrists. (AR 363). His other examinations also revealed objective evidence 24 consistent with his opinion, such as tenderness and reduced range of motion at 25 multiple areas of the spine (AR 346, 348), and pain with motion in the 26 musculoskeletal system (AR 351, 499, 502). The ALJ s citation of medical expert 27 Dr. Brown s testimony that there is no evidence supporting the limitations 28 ascribed to [plaintiff s] hands and upper extremities as noted by Dr. Janoian (AR 7 1 19) does not change the result. Dr. Brown testified that Dr. Janoian diagnosed 2 plaintiff with a trigger finger and assessed her hand grip at zero, which the 3 other clinicians did not find. (AR 67). However, an examining orthopedist 4 assessed plaintiff s grip strength as five pounds in the right hand and zero pounds 5 in the left hand (AR 295). Thus, Dr. Brown s opinion is not fully supported by the 6 evidence. The ALJ must consider the record as a whole, without selectively 7 focus[ing] on [evidence] which tend[s] to suggest non-disability. See Edlund v. 8 Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). 9 The ALJ also discounted Dr. Janoian s opinion because, to the ALJ, it 10 appears that Dr. Janoian is actively assisting the claimant s attempt to obtain 11 benefits. (AR 19). But the ALJ did not point to any evidence showing 12 impropriety on the part of Dr. Janoian, and he may not assume that a treating 13 physician lacks credibility merely because he was supportive of his patient. See 14 Reddick v. Chater, 157 F.3d 715, 725-26 (9th Cir. 1996) (error for ALJ to reject 15 physician s opinion because physician was compassionate and supportive of the 16 patient ); Lester, 81 F.3d at 832 ( The Secretary may not assume that doctors 17 routinely lie in order to help their patients collect disability benefits. (citation and 18 quotation marks omitted)). Therefore, no substantial evidence supports this reason 19 for rejecting Dr. Janoian s opinion. 20 The ALJ also rejected the opinion of an examining physician, Dr. 21 Srinivasan. (AR 18). Dr. Srinivasan assessed plaintiff with a slightly more 22 restrictive functional capacity than did the ALJ. For example, Dr. Srinivasan 23 believed plaintiff could stand and walk for about 4 hours or so in an 8-hour shift 24 and could only frequently do pushing, pulling, holding, grasping, and fine 25 manipulation of fingers with both hands. (AR 466). Because Dr. Janoian 26 assessed plaintiff with even greater limitations than did Dr. Srinivasan, the Court 27 does not review the ALJ s reasons for rejecting Dr. Srinivasan s opinion. On 28 /// 8 1 remand, the ALJ is required to reconsider Dr. Janoian s opinion and free to 2 reassess Dr. Srinivasan s opinion.3 3 V. CONCLUSION 4 For the foregoing reasons, the decision of the Commissioner of Social 5 Security is reversed in part, and this matter is remanded for further administrative 6 action consistent with this Opinion.4 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 DATED: August 9, 2010 9 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 The Court need not, and has not adjudicated plaintiff s other challenges to the ALJ s decision, except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. 4 When a court reverses an administrative determination, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); see also Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (remand is an option where the ALJ stated invalid reasons for rejecting a claimant s excess pain testimony). 9

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