Mary Anne Francia v. Michael J. Astrue, No. 2:2009cv07519 - Document 22 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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Mary Anne Francia v. Michael J. Astrue Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARY ANNE FRANCIA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 09-07519-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on October 15, 2009, seeking review of 19 the denial by the Social Security Commissioner (“Commissioner”) of 20 plaintiff’s claim for a period of disability and disability insurance 21 benefits (“DIB”). 22 proceed before the undersigned United States Magistrate Judge, pursuant 23 to 28 U.S.C. § 636(c). 24 28, 25 Commissioner’s decision and remanding this case for the payment of 26 benefits or, alternatively, for further administrative proceedings; and 27 defendant requests that the Commissioner’s decision be affirmed. 28 Court has taken the parties’ Joint Stipulation under submission without 2010, in On November 18, 2009, the parties consented to which: The parties filed a Joint Stipulation on July plaintiff seeks an order reversing the The Dockets.Justia.com 1 oral argument. 2 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 Plaintiff filed an application for a period of disability and DIB 6 on December 10, 2002. (Administrative 7 Plaintiff claims to have been disabled since December 15, 2001, due to 8 thoracic outlet compression syndrome, impingement syndrome, and possible 9 carpal tunnel syndrome.1 (A.R. 13-14, 53.) Record (“A.R.”) 48-50.) Plaintiff has past relevant 10 work experience as a licensed vocational nurse, certified nursing 11 assistant, and cashier/hostess.2 (A.R. 54, 848.) 12 13 After the Commissioner denied plaintiff’s claims initially and upon 14 reconsideration, plaintiff requested a hearing. 15 On April 21, 2004, plaintiff, who was represented by counsel, appeared 16 and testified at a hearing before Administrative Law Judge Sally Reason 17 (“ALJ Reason”). 18 plaintiff’s claims (A.R. 13-20), and the Appeals Council subsequently 19 denied plaintiff’s request for review of ALJ Reason’s decision (A.R. 5- 20 9). 21 remanded the case for further proceedings in a March 26, 2007 Order (A.R. 431-59.) (A.R. 37-40, 43-47.) On July 15, 2004, ALJ Reason denied On October 14, 2005, plaintiff sought review in this Court, which 22 23 24 25 26 27 28 1 Plaintiff amended her onset date from November 20, 2001, to December 15, 2001, to comport with her work history. (A.R. 13, 48, 440.) 2 Plaintiff testified that she had a “combination job” –working both as a cashier and a hostess at the Burbank Airport. (A.R. 848.) 2 1 (“Remand Order”).3 (A.R. 605-34.) 2 3 On July 13, 2007, the Appeals Council effectuated the Court’s 4 Remand Order and remanded the matter to an administrative law judge for 5 a supplemental hearing, which occurred on October 1, 2007. 6 844-54.) 7 Ronald Hatakeyama, a vocational expert, also testified. 8 On November 29, 2007, ALJ Reason denied plaintiff’s claims. 9 40.) (A.R. 642, At the hearing, plaintiff again testified before ALJ Reason. (A.R. 855-58.) (A.R. 529- 10 11 Subsequently, the Appeals Council, in its May 28, 2008 Order, 12 assumed jurisdiction of the case and remanded the matter for further 13 proceedings. 14 discrepancy in [ALJ Reason]’s finding that [plaintiff] can return to 15 [her] past relevant work as a hostess.” (A.R. 668-70.) The Appeals Council based its remand on “a (A.R. 668-70.) 16 17 On October 8, 2008, plaintiff testified at a hearing before 18 Administrative Law Judge Zane A. Lang (the “ALJ”). 19 28, 831-33.) Medical expert Michael Stuart Gurvey, M.D., and vocational 20 expert Gregory Jones also testified. (A.R. 804-06, 816-40.) On January 21 15, 2009, the ALJ denied plaintiff’s claims. 22 decision is now at issue in this action. 23 /// 24 /// 25 /// (A.R. 806-16, 827- (A.R. 494-505.) That 26 3 27 28 The Remand Order directed a remand for two reasons: first, the ALJ improperly rejected the opinion of plaintiff’s treating physician, Dr. John Larsen; and second, the ALJ improperly discredited plaintiff’s credibility. (A.R. 606-34.) 3 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 The ALJ found that plaintiff has not engaged in substantial gainful 4 activity since December 5, 2001, the alleged onset date of her claimed 5 disability. 6 decision, plaintiff was a “younger individual” with a “post secondary 7 education.” 8 following severe impairments: 9 resections of the ribs, bilateral shoulder impingement syndrome, and (A.R. 495.) The ALJ further found that, at the time of the (A.R. 495, 503.) The ALJ determined that plaintiff has the thoracic outlet syndrome, status post 10 possible bilateral carpal tunnel syndrome.4 11 determined that plaintiff does not have an impairment or combination of 12 impairments that meets or equals in severity any impairment listed in 13 Appendix 1, Subpart P, Regulations No. 4. 14 the ALJ found that plaintiff’s allegations regarding her pain and 15 limitations were not entirely credible. (Id.) (A.R. 496.) The ALJ also Additionally, (A.R. 497-98, 501-02, 504.) 16 17 18 19 20 21 22 23 24 25 26 27 28 4 In determining plaintiff’s “severe” impairments, the ALJ abandoned ALJ Reason’s determination that plaintiff’s cervical spine impairment was “severe.” (A.R. 495.) This constitutes error. In the 2007 Remand Order, this Court remanded the case to ALJ Reason to remedy specified deficiencies and errors –- namely, to reconsider the opinion of plaintiff’s treating physician and plaintiff’s credibility. After ALJ Reason issued her decision denying plaintiff’s claims, the Appeals Council remanded the matter to the present ALJ based on a discrepancy in ALJ Reason’s finding that plaintiff could return to her past relevant work as a hostess. Neither the 2007 Remand Order nor the Appeals Council’s Remand Order authorized the ALJ to redetermine the severity of plaintiff’s impairments at step two. Accordingly, the ALJ committed legal error by deviating from the scope of the Remand Orders. See e.g., Gallagher v. Astrue, 2009 WL 57033 (C.D. Cal. Jan. 6, 2009)(although remand was limited to step four and step five issues regarding plaintiff’s past relevant work and alternate work, the ALJ committed legal error when he made a redetermination of the plaintiff’s severe impairments at step two, reassessed the plaintiff’s RFC at step four, and eliminated moderate limitations previously found); see also Ischay v. Barnhart, 383 F. Supp. 2d 1199, 1214 (C.D. Cal. 2005)(“The rule of mandate requires that, on remand, the lower court’s actions must be consistent with both the letter and the spirit of the higher court’s decision.”). 4 1 2 The ALJ determined that plaintiff has the residual functional capacity (“RFC”) for: 3 4 work with limitations to lifting/carrying below shoulder level 5 only 6 frequently; 7 bilaterally, and that pushing and pulling are limited to the 8 below shoulder level capacities. Additionally, [plaintiff] is 9 limited to occasionally reaching, handling and fingering in 10 all directions (no repetitive fingering such as keyboarding 11 for more than 30 minutes at a time without a 5 minute break); 12 occasionally 13 scaffolds; and no work that involves heavy vibrations, such as 14 with jackhammers. 10 pounds no occasionally weights crawling; above no and less shoulder climbing of than level 10 or ladders, pounds overhead ropes or 15 16 (A.R. 496.) 17 18 The ALJ concluded that plaintiff was unable to perform her past 19 relevant work. (A.R. 503.) However, having considered plaintiff’s age, 20 education, work experience, and medical limitations, as well as the 21 testimony of the vocational expert, the ALJ found that jobs exist in the 22 national economy that plaintiff could perform, including those of a call 23 out 24 Accordingly, the ALJ concluded that plaintiff was not disabled within 25 the meaning of the Social Security Act through the date of his decision. 26 (A.R. 505.) 27 /// 28 /// operator and a surveillance system 5 monitor. (A.R. 503-04.) 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 4 decision to determine whether it is free from legal error and supported 5 by substantial evidence in the record as a whole. 6 F.3d 625, 630 (9th Cir. 2007). 7 evidence as a reasonable mind might accept as adequate to support a 8 conclusion.’” 9 a mere scintilla but not necessarily a preponderance.” Orn v. Astrue, 495 Substantial evidence is “‘such relevant Id. (citation omitted). The “evidence must be more than Connett v. 10 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). “While inferences from the 11 record can constitute substantial evidence, only those ‘reasonably drawn 12 from the record’ will suffice.” 13 1066 (9th Cir. 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 1063, 14 15 Although this Court cannot substitute its discretion for that of 16 the Commissioner, the Court nonetheless must review the record as a 17 whole, “weighing both the evidence that supports and the evidence that 18 detracts from the [Commissioner’s] conclusion.” 19 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 20 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 21 responsible for determining credibility, resolving conflicts in medical 22 testimony, and for resolving ambiguities.” 23 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec’y of “The ALJ is Andrews v. Shalala, 53 F.3d 24 25 The Court will uphold the Commissioner’s decision when the evidence 26 is susceptible to more than one rational interpretation. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 review only the reasons stated by the ALJ in his decision “and may not 6 Burch v. However, the Court may 1 affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d 2 at 630; see also Connett, 340 F.3d at 874. 3 the Commissioner’s decision if it is based on harmless error, which 4 exists only when it is “clear from the record that an ALJ’s error was 5 ‘inconsequential to the ultimate nondisability determination.’” Robbins 6 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 7 Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 8 at 679. The Court will not reverse 9 DISCUSSION 10 11 12 Plaintiff makes the following four claims: (1) the ALJ failed to 13 give appropriate weight to the opinion of plaintiff’s treating doctor 14 and the diagnosis of plaintiff’s chiropractor; (2) the ALJ improperly 15 evaluated plaintiff’s credibility; (3) the ALJ improperly assessed 16 plaintiff’s RFC; and (4) the ALJ improperly found that plaintiff can 17 perform work other than her past relevant work.5 18 (“Joint Stip.”) at 3.) (Joint Stipulation 19 20 21 I. The ALJ’s Failure To Discuss The Post-Hearing Evidence Constitutes Error. 22 23 “The SSA’s regulations and directives allow for a claimant to 24 submit additional evidence after an administrative hearing but before 25 the ALJ renders [his] decision.” Lord v. Apfel, 114 F. Supp. 2d 3, 14 26 5 27 28 Plaintiff subsumes the issue regarding the submission of additional evidence –- plaintiff’s 2008 MRI and CT reports -- within her first claim. For purposes of clarity, however, the Court will address this issue separately. 7 1 (D.N.H. 2000)(citing 20 C.F.R. §§ 404.936(a), 404.944 (1999); HALLEX I- 2 2-630, 1993 WL 643026 (June 30, 1994); HALLEX I-2-678, 1993 WL 751904 3 (June 30, 1994)); see also Bates v. Sullivan, 894 F.2d 1059, 1064 (9th 4 Cir. 1990)(noting that the Appeals Council shall consider the entire 5 record, including new and material evidence submitted to it, if the 6 additional evidence relates to the period on or before the date of the 7 ALJ’s decision); 20 C.F.R. § 404.970(b). 8 9 In this case, the ALJ failed to discuss plaintiff’s updated MRI and 10 CT reports, which were submitted to the ALJ prior to his January 15, 11 2009 decision. 12 on November 29, 2008 –- approximately seven weeks after the October 8, 13 2008 hearing and six weeks before the ALJ’s January 15, 2009 decision. 14 (A.R. 485, 494-505, 800.) 15 November 12, 2008, and MRI reports dated July 18, 2008, and July 12, 16 2002.7 17 appears to show that plaintiff’s cervical spine condition has worsened 18 since 2002, particularly at the C5-6 location.8 Plaintiff submitted the additional evidence to the ALJ (A.R. 484-89.) The evidence consisted of a CT report6 dated In pertinent part, the additional evidence (A.R. 486-89.) 19 20 21 6 When plaintiff submitted the additional evidence to the ALJ, she referred to the November 10, 2008 report as an “MRI report.” (A.R. 484-85.) Upon closer examination, however, the report appears to be a CT report. (A.R. 486.) 22 7 23 24 25 The additional evidence also consisted of a note from plaintiff dated November 26, 2008, indicating that she was scheduled to have an anterior cervical microdiscetomy with fusion and instrumentation surgery on December 12, 2008. (A.R. 489.) 8 The findings of plaintiff’s November 10, 2008 CT scan were as follows: 26 27 28 Mild reversal of the cervical lordosis is present and is associated with minimal anterolisthesis at C4-5. Irregular 3 mm nodular density is present in the apex of the right upper lobe (series 200, image 16). 8 1 Although the ALJ addresses the 2002 MRI report in his decision, he 2 does not address the 2008 CT and MRI reports. Accordingly, it is 3 impossible for the Court to determine whether the ALJ rejected or simply 4 ignored that evidence. 5 was entitled to find the additional evidence “unworthy of credit,” he 6 was not entitled to find it “unworthy of comment.” See Lord, 114 F. Supp. 2d at 14. While the ALJ Id. at 15-16. 7 8 C2-C3: 9 C3-C4: Right paracentral disc protrusion measures 1-2 mm results in mild central spinal stenosis and mild flattening of the right ventral portion of the cord. No neural foraminal narrowing is present. 10 Normal. 11 12 13 C4-C5: Mild decreased disc height is present. Diffuse disc protrusion and asymmetric to the right which measures 1-2 mm AP which results in mild central spinal stenosis and mild mass effect on the right ventral portion of the cord. No neural foraminal narrowing is present. 14 15 16 17 C5-C6: Mild to moderate decreased disc height is asymmetric to the right. Focal right paracentral disc protrusion measures 3 x 11 mm (AP by wide) which compresses the right ventral portion of the cord and likely affects the exciting right C6 nerve root (series 3, image 52-53). Moderate right neural foraminal narrowing is present. Left neural foramen is widely patent. 18 C6-C7 to T2-T3: Normal. 19 (A.R. 486.) 20 The impression of the CT scan was as follows: 21 22 23 24 1. Focal right paracentral disc protrusion at C5-C6 measuring 3 x 11 mm (AP by wide) which compresses the right ventral portion of the cord and likely impinges the exiting right C6 nerve root. 2. Mild reversal of the anterolisthesis at C4-C5. cervical lordosis with minimal 25 26 27 28 3. Nonspecific irregular 3 mm nodular density in the apex of the right upper lobe which could be related to an area of scarring or a nodule. Followup CT of the chest is recommended in 12 months to document stability. (A.R. 486-87.) 9 The 1 ALJ’s failure to discuss the additional evidence, therefore, constitutes 2 error. 3 4 II. 5 The ALJ Failed To Give Appropriate Weight To The Opinions And Diagnoses Of Plaintiff’s Treating Physician And Chiropractor. 6 7 Plaintiff contends that the ALJ failed to give appropriate weight 8 to the opinion of her treating orthopedist, John Larsen, M.D., and the 9 diagnosis of her chiropractor, Milton L. Payne, D.C. (Joint Stip. at 3- 10 6.) Specifically, plaintiff argues that, while the ALJ provided 11 specific reasons for rejecting Dr. Larsen’s and Dr. Payne’s opinions and 12 diagnoses, those reasons were not legitimate. (Joint Stip. at 6.) 13 14 A. The ALJ Failed To Properly Consider The Opinion Of Dr. Larsen. 15 It is the responsibility of the ALJ to resolve conflicts in medical 16 17 testimony and analyze evidence. 18 (9th Cir. 1989). 19 assessing a social security claim, “[g]enerally, a treating physician’s 20 opinion carries more weight than an examining physician’s, and an 21 examining physician’s opinion carries more weight than a reviewing 22 physician’s.” 23 2001); 20 C.F.R. § 404.1527(d). The opinions of treating physicians are 24 entitled to the greatest weight, because the treating physician is hired 25 to 26 Magallanes, 881 F.2d at 751. 27 contradicted by another physician, it may be rejected only for “clear 28 and convincing” reasons. cure and Magallanes v. Bowen, 881 F.2d 747, 750 In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. has a better opportunity to observe the claimant. When a treating physician’s opinion is not Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 10 1 1995)(as amended). When contradicted by another doctor, a treating 2 physician’s opinion may only be rejected if the ALJ provides “specific 3 and legitimate” reasons supported by substantial evidence in the record. 4 Id. 5 6 An ALJ “has a special duty to fully and fairly develop the record 7 and to assure that claimant’s interests are considered.” 8 Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Pursuant to 20 C.F.R. § 9 404.1512(e), additional the Administration “will seek Brown v. evidence or 10 clarification from your medical source when the report from your 11 medical source contains a conflict or ambiguity that must be resolved, 12 [or] the report does not contain all the necessary information 13 See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)(noting that 14 “[i]f the ALJ thought he needed to know the basis of [the doctor’s] 15 opinions in order to evaluate them, he had a duty to conduct an 16 appropriate inquiry”). . . . .” 17 18 Here, the ALJ erred by rejecting Dr. Larsen’s opinion without 19 stating legitimate reasons, supported by substantial evidence of record, 20 for doing so, and without attempting to recontact Dr. Larsen. 21 rejected Dr. Larsen’s opinion regarding plaintiff’s standing, walking, 22 and sitting limitations, as well as her need to be absent from work and 23 her cervical spine condition, because, in the ALJ’s view, Dr. Larsen’s 24 opinion was not supported by the evidence of record and there were 25 contrary examining and other source opinions. 26 However, in view of plaintiff’s submission of additional evidence and 27 the ALJ’s failure to comment upon it, the Court does not find the ALJ’s 28 reasons to be legitimate or supported by the requisite substantial 11 The ALJ (See A.R. 499-501.) 1 evidence. 2 3 Moreover, it appears that the contrary examining and other source 4 opinions are based on an incomplete medical record, and thus, they 5 cannot constitute substantial evidence. 6 2008 hearing, Dr. Gurvey testified that plaintiff’s central disc bulge 7 did not show a pathology that either explains cervical spine pain or 8 supports Dr. Larsen’s “extreme” restrictions. 9 Clearly, however, Dr. Gurvey did not review plaintiff’s updated MRI and 10 CT reports, which were not yet available, before rendering his opinion. 11 Further, there is no evidence of record to suggest that the ALJ 12 submitted the additional evidence to Dr. Gurvey following the hearing, 13 so that, if appropriate, he could reconsider his opinion regarding 14 plaintiff’s 15 additional reports appear to show that plaintiff’s central disc bulge 16 has increased in size since her 2002 MRI report, and it is unclear what 17 impact, if any, this additional evidence would have on Dr. Gurvey’s 18 opinion. 19 other treating and source opinions, is improper, because those opinions 20 are not based on a complete medical record and, thus, cannot support a 21 rejection of Dr. Larsen’s opinion. condition and limitations. For example, at the October In (A.R. 499-500, 821.) pertinent part, the Accordingly, the ALJ’s reliance on Dr. Gurvey’s opinion, and 22 23 The ALJ’s other stated reasons for rejecting Dr. Larsen’s opinion 24 –- to wit, that Dr. Larsen’s reports contain internal inconsistencies 25 and that his opinion predates plaintiff’s surgeries, and plaintiff’s 26 condition may have improved –- cannot, without further inquiry, support 27 a rejection of Dr. Larsen’s opinion. 28 are not at complete odds with one another, his reports do contain 12 First, while Dr. Larsen’s reports 1 different limitations and restrictions,9 particularly with respect to 2 plaintiff’s 3 However, to the extent that the ALJ found it “curious” that Dr. Larsen’s 4 reports contained differing limitations and restrictions, the ALJ should 5 have recontacted Dr. Larsen in accordance with his duty to conduct an 6 appropriate inquiry. alleged sitting, walking, and standing limitations. 7 8 Second, the ALJ’s suggestion, that plaintiff’s condition “may” have 9 improved following her surgeries, is not a legitimate reason for 10 rejecting Dr. Larsen’s opinion. The medical evidence regarding 11 plaintiff’s post-surgery condition is equivocal, at best, as evidenced 12 by the updated MRI and CT results, which appear to show that plaintiff’s 13 cervical spine condition is worsening. 14 condition, in view of the updated MRI and CT results, suggests a need The uncertainty of plaintiff’s 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 In an April 2003 Medical Source Statement, Dr. Larsen found that plaintiff could stand and/or walk less than 2 hours in an 8 hour workday, and sit for 1 to 2 hours with breaks. (A.R. 147.) He found that plaintiff would need to alternate standing and sitting “as needed.” (A.R. 148.) He noted that plaintiff has limited reaching, handling, fingering, and feeling, as well as environmental restrictions involving heights, moving machinery, temperature extremes, chemicals, and dust. Curiously, and perhaps carelessly, he also checked entries indicating that plaintiff has seeing, hearing, and speaking limitations –limitations that appear to be wholly unsupported by the evidence of record. In a February 2004 report prepared in connection with plaintiff’s worker’s compensation claim, Dr. Larsen did not include any sitting, standing, or walking restrictions. (A.R. 401-03.) He also included no sensory or environmental restrictions. (Id.) In a March 2004 Physical Residual Functional Capacity Questionnaire, Dr. Larsen found that plaintiff could sit and/or stand for more than 2 hours continuously; could sit and stand/walk for at least 6 hours in an 8 hour working day (with normal breaks); and needs to walk every 90 minutes for a period of 15 minutes. (A.R. 421-22.) He also estimated that plaintiff is likely to be absent from work about twice a week as a result of her impairments or treatment. (A.R. 423.) No sensory or environmental restrictions were included. 13 1 for the ALJ to develop the record further. 2 3 The ALJ’s last reason for rejecting Dr. Larsen’s opinion –- that 4 “Dr. Larsen is not an expert in thoracic surgery - which is the primary 5 basis 6 legitimate. 7 thoracic outlet syndrome, Dr. Larsen did rely on the diagnoses of two 8 thoracic outlet syndrome experts, Dr. Sam Ahn and Dr. Sheldon Jordan, in 9 assessing plaintiff’s limitations. for the various limitations (A.R. 501.) that he assessed” –- is not Although Dr. Larsen is not an expert in In addition, as plaintiff properly 10 notes, Dr. Gurvey, upon whom the ALJ “heavily” relies in rejecting Dr. 11 Larsen’s opinion, also is not a specialist in thoracic outlet syndrome; 12 he is a board certified orthopedic surgeon, just like Dr. Larsen. 13 (Joint Stip. at 5; citing A.R. 361, 804.) 14 directs that greater weight be given to the opinion of a specialist than 15 a 16 syndrome, and there is no opinion from a thoracic outlet syndrome 17 specialist that contradicts Dr. Larsen’s opinion. See generally Bunnell 18 v. Sullivan, 912 F.2d 1149 (9th Cir. 1990). 19 improper for the ALJ to reject Dr. Larsen’s opinion on this ground. generalist, Dr. Gurvey is not a While the Ninth Circuit specialist in thoracic outlet Accordingly, it was 20 21 22 B. The ALJ Should Revisit His Consideration Of Dr. Payne’s Diagnosis Regarding Plaintiff’s Headaches. 23 24 According to the Social Security Regulations, a claimant may submit 25 information from other sources, such as chiropractors, to help the ALJ 26 understand “the nature and severity of [the] impairment” as well as how 27 the “impairment affects [the claimant’s] ability to work.” 28 C.F.R. § 404.1513(e). See 20 Although a chiropractor is not an “acceptable 14 1 medical source,” the ALJ may use evidence from chiropractors when 2 considering the severity of impairments. 3 Ultimately, the ALJ has the discretion to determine the appropriate 4 weight to accord the opinion of a chiropractor. 5 307, 313-14 (9th Cir. 1995); Social Security Ruling 06-03p, 2006 SSR 6 LEXIS 5, *7-8. See 20 C.F.R. § 404.1513(d). Diaz v. Shala, 59 F.3d 7 8 9 In the present case, the ALJ apparently gave no weight to the reports from Dr. Payne, plaintiff’s chiropractor, who diagnosed 10 plaintiff with, among other medical conditions, headaches. 11 While headaches may not be within the normal purview of a chiropractor, 12 plaintiff saw Dr. Payne for approximately two years, during which time 13 her headaches (“cephalgia”) were well-documented.10 14 ALJ 15 plaintiff’s headaches “receive scant mention from any other source,” the 16 ALJ errs. 17 headaches are documented by medical sources, including Dr. Ahn (A.R. 18 114), Dr. Larsen (A.R. 160, 169, 173, 385), and Dr. Hugh Gelabert (A.R. 19 758). Accordingly, the Court finds that the ALJ’s reason for not giving 20 any weight to Dr. Gurvey’s diagnosis was not legitimate. attempts to dismiss Dr. Payne’s headache (A.R. 502.) To the extent the diagnosis, because Contrary to the ALJ’s finding, plaintiff’s complaints of 21 22 Moreover, to the extent that the ALJ cites Dr. Gurvey’s “testimony” 23 as a reason to dismiss plaintiff’s headaches and any resulting work 24 restrictions, the ALJ errs. 25 testimony from the October 2008 hearing, the Court cannot find any After carefully examining Dr. Gurvey’s 26 27 28 10 See, e.g., A.R. 273, 277, 281, 285, 289, 294, 300, 306, 311, 315, 322, 325, 331, 333, 405, 407, 409, 411. 15 1 testimony from Dr. Gurvey regarding plaintiff’s headaches.11 2 3 Accordingly, the Court finds that the ALJ should revisit his 4 consideration of Dr. Payne’s diagnosis, and should he elect to give no 5 weight to Dr. Payne’s opinion, he should set forth legitimate reasons 6 for so doing that are not based on a mischaracterization of the evidence 7 of record. 8 determine whether plaintiff’s headaches warrant a work restriction, and 9 if they do, the ALJ should adjust his RFC determination accordingly. Further, the ALJ should develop the record further to 10 11 III. The ALJ Improperly Evaluated Plaintiff’s Credibility. 12 13 Once a disability claimant produces objective evidence of an 14 underlying impairment that is reasonably likely to be the source of her 15 subjective symptom(s), all subjective testimony as to the severity of 16 the symptoms must be considered. 17 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 18 1991)(en banc); see also 20 C.F.R. § 404.1529(a) (explaining how pain 19 and other symptoms are evaluated). 20 malingering based on affirmative evidence thereof, he or she may only 21 find an applicant not credible by making specific findings as to 22 credibility 23 Robbins, 466 F.3d at 883. and stating clear Moisa v. Barnhart, 367 F.3d 882, 885 “[U]nless an ALJ makes a finding of and convincing reasons for each." The factors to be considered in weighing a 24 25 26 27 28 11 The ALJ also stated that “given [plaintiff’s] daily activities, including driving, and her medication regimen,” plaintiff’s headaches do not warrant a work restriction. (A.R. 502.) As discussed infra, the Court fails to see how plaintiff’s limited daily activities, including driving and complying with her medication regimen, would, as the ALJ suggests, negate plaintiff’s headaches and/or possible need for a headache-related work restriction. 16 1 claimant’s credibility include: (1) the claimant’s reputation for 2 truthfulness; (2) inconsistencies either in the claimant’s testimony or 3 between the claimant’s testimony and her conduct; (3) the claimant’s 4 daily activities; (4) the claimant’s work record; and (5) testimony from 5 physicians and third parties concerning the nature, severity, and effect 6 of the symptoms of which the claimant complains. 7 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. § 8 404.1529(c). See Thomas v. 9 10 An ALJ may not rely on a plaintiff’s daily activities to support an 11 adverse credibility determination when those activities do not affect 12 the claimant’s ability to perform appropriate work activities on an 13 ongoing and daily basis. Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th 14 Cir. 1990). 15 claimant’s “‘ability to work on a sustained basis.’” 16 (emphasis in original)(citing 20 C.F.R. § 404.1512(a)). A claimant need 17 not be “utterly incapacitated to be eligible for benefits . . . and many 18 home activities are not easily transferable to what may be the more 19 grueling environment of the workplace, where it might be impossible to 20 periodically rest or take medication.” Fair v. Bowen, 885 F.2d 597, 602 21 (9th Cir. 1989). As the Ninth Circuit noted in Lester, the ALJ must evaluate 81 F.3d at 833 22 23 The ALJ generally stated three grounds for rejecting plaintiff’s 24 credibility: (1) plaintiff’s daily activities and “active lifestyle” 25 appear to be inconsistent with her alleged limitations; (2) plaintiff’s 26 use of her pain medications does not correspond with the level of pain 27 asserted; and (3) plaintiff’s symptoms do not correlate with objective, 28 medical findings. (A.R. 498.) These reasons, while specific, are not 17 1 legitimate and do not constitute clear and convincing reasons based on 2 substantial evidence as required. 3 4 The ALJ’s first ground is not legitimate, because plaintiff’s daily 5 activities are not, contrary to the ALJ’s finding, inconsistent with her 6 reported limitations. 7 this ground, the ALJ asserts, for example, that “it appears that driving 8 would be precluded if [plaintiff]’s use of her extremities were as 9 limited as she suggests - and if her medications had such adverse To support his adverse credibility finding on 10 affect.” 11 rather active lifestyle since the alleged onset date also tends to 12 minimize her claims as to the frequency, intensity and duration of 13 headaches or effects of medication.” (A.R. 498.) He further states that plaintiff’s “historically (Id.) 14 15 At the October 2008 hearing, plaintiff testified that she drives 16 her daughter two blocks to the bus stop every day and drives two blocks 17 to 18 Additionally, plaintiff testified to the following limitations: she can 19 sit, stand, and walk for 30 minute increments each; she has a lifting 20 capacity of less than 10 pounds; and she has problems using her hands –- 21 such that she cannot keyboard for more than 10-15 minutes and cannot 22 open a water bottle without a hand grip. 23 noted that she has pain in her neck, shoulders, and lower back, and 24 while medications provide temporary relief, they make her drowsy and 25 lightheaded. her physical therapy session once a week. (A.R. (A.R. 497, 815-16.) 809-10.) Plaintiff (A.R. 811-13.) 26 27 Contrary to the ALJ’s finding, the Court does not find the side 28 effects of plaintiff’s medications and her self-reported limitations to 18 1 be inconsistent with the scant amount of time she spends driving.12 2 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (noting “that 3 the mere fact that a plaintiff has carried on certain daily activities, 4 such 5 exercise, does not in any way detract from [plaintiff’s] credibility as 6 to her overall disability”). as grocery shopping, driving a car, or limited walking See for 7 Further, 8 9 the Court does particularly “active lifestyle.” that plaintiff leads a Beyond her limited, regular driving, plaintiff: 11 dusting, wiping, and washing laundry; goes grocery shopping once or 12 twice a week; and cooks three to four times a month. 13 Plaintiff’s limited daily activities –- which the ALJ noted that 14 plaintiff performs slowly and with frequent rests (A.R. 498) –- do not 15 appear to be inconsistent with her alleged medication side effects of 16 drowsiness and lightheadedness, particularly in view of the fact that 17 plaintiff only takes the stronger medications, Vicodin and Flexeril, two 18 to 19 activities do not appear to be at odds with her self-reported daily 20 headaches, which last for one to two hours a day. 21 Critically, the ALJ fails to explain how plaintiff’s basic activities 22 and light household chores translate into the ability to perform full- times a light find 10 three performs not week chores (A.R. around 832). the house, Likewise, consisting of (A.R. 810-11.) plaintiff’s (A.R. daily 812.) 23 24 25 12 26 27 28 Plaintiff noted in a July 2003 Pain Questionnaire that when she must travel by car for prolonged periods, she “asks [a] family member to drive [her].” (A.R. 80.) When plaintiff does drive, she reported in a July 2003 Exertional Daily Activities Questionnaire that she “wear[s] a hand support and place[s] pillows under [her] hands for support.” (A.R. 89.) 19 1 time work.13 See Fair, 885 F.3d 602. This constitutes error. 2 3 The ALJ further attempts to reject plaintiff’s credibility by 4 asserting that, “[if plaintiff] had the level of pain asserted, it would 5 seem that she would take [her pain medications] more.” 6 ALJ’s argument fails for several reasons. First, although not mentioned 7 in the ALJ’s decision, plaintiff testified at the October 2008 hearing 8 that she takes the pain medication Neurontin daily. 9 Second, while plaintiff did testify that she takes Vicodin and Flexeril 10 only two to three times a week, there is no evidence of record to 11 support the ALJ’s implication that she limits her use, because she is 12 not in pain. 13 plaintiff limits her use of these strong and addictive medications, 14 because they make her feel lightheaded and drowsy. 15 plaintiff testified that the pain she experiences is often related to 16 her daily activities. 17 if she sits for too long, she will experience heavy pressure on her neck 18 and shoulders, her muscles will begin to pinch, and this will cause her 19 to have a headache. (Id.) (A.R. 498.) The (A.R. 832.) Rather, the evidence of record suggests that (A.R. 558.) (Id.) (A.R. 812.) Third, Plaintiff noted, for example, that Thus, it follows that to the degree 20 13 21 22 23 24 25 26 27 28 Defendant’s reliance on Morgan v. Apfel, 169 F.3d 595, 600 (9th Cir. 1999), to support his contention that plaintiff’s activities are inconsistent with her reported pain is misplaced. In Morgan, the Court found that plaintiff’s “ability to fix meals, do laundry, work in the yard, and occasionally care for his friend’s child served as evidence of Morgan’s ability to work.” Morgan, 169 F.3d at 600. The Morgan Court noted that “[i]f a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting, a specific finding as to this fact may be sufficient to discredit a claimant’s allegations.” Id. Here, unlike in Morgan, the evidence does not show that plaintiff spends a “substantial” portion of her day engaged in activities transferable to the work environment. Rather, the evidence shows that plaintiff performs basic activities slowly and with frequent rests. Accordingly, the Court finds the present case distinguishable from Morgan. 20 1 plaintiff can adjust her position throughout the day –- a limitation 2 which the ALJ does not provide for in his RFC determination –- she can 3 avoid situations that would trigger her need for pain medications. 4 Accordingly, the Court rejects the ALJ’s second ground for discrediting 5 plaintiff’s credibility because it is neither clear nor convincing. 6 7 Lastly, the ALJ attempts to discredit plaintiff by asserting that 8 plaintiff “testified to medical problems that have no foundation and for 9 which she has not been treated, particularly low back pain.” (A.R. 10 498.) As discussed supra, the updated MRI and CT results, which appear 11 to show that plaintiff’s cervical spine condition has worsened since 12 2002, 13 objective medical findings that could support plaintiff’s reported 14 symptoms, particularly her back pain.14 15 /// 16 /// 17 /// 18 /// were not considered. This additional evidence constitutes 19 14 20 21 22 23 24 25 26 27 28 The ALJ also needs to consider the post-hearing evidence to determine what impact, if any, it has on his evaluation of plaintiff’s allegations of pain. The ALJ attempts to discredit plaintiff’s reports of pain by noting that she has benefitted from medications, chiropractic treatments, and physical therapy. (A.R. 498.) While there is evidence that plaintiff has benefitted from medications, chiropractic treatments, and physical therapy, this is not a complete picture of the evidence of record. There are several reports in the records noting that the above treatments were not effective. (See e.g, A.R. 114 (June 2002 Report –plaintiff “has tried physical therapy, acupuncture and chiropractic therapy; all of which have failed to relieve her symptoms”); A.R. 160 (January 2004 Report –- injection ineffective).) Further, the evidence of record shows that plaintiff has remained symptomatic, as best evidenced by her thoracic outlet surgeries in 2006 and 2007, and her anterior cervical microdiscetomy with fusion and instrumentation surgery in 2008. Accordingly, the ALJ needs to review the entire record, including the new evidence, and revisit his evaluation of plaintiff’s credibility with respect to her reports of pain. 21 1 IV. 2 The ALJ Must Review And Reconsider Plaintiff’s RFC And Plaintiff’s Ability to Perform “Other Work.” 3 Based on the foregoing, there are several matters that the ALJ 4 5 needs to review and reconsider on remand. As a result, the ALJ’s 6 conclusion regarding plaintiff’s RFC and her capacity to perform “other 7 work” may change. Therefore, the Court does not reach plaintiff’s third 8 and fourth claims, to wit, that the ALJ erred in determining plaintiff’s 9 RFC, and the ALJ erred in finding plaintiff can perform work other than 10 her past relevant work. To properly review and reconsider these issues, 11 the ALJ needs to consider the additional evidence and determine what 12 weight, if any, the evidence has on his evaluations with respect to the 13 opinion of plaintiff’s treating doctor, the diagnosis of plaintiff’s 14 chiropractor, and plaintiff’s credibility. 15 plaintiff’s RFC is reassessed, additional testimony from a vocational 16 expert likely will be required to determine whether plaintiff can 17 perform work other her past relevant work. Further, to the extent that 18 19 V. Remand Is Required. 20 21 The decision whether to remand for further proceedings or order an 22 immediate award of benefits is within the district court’s discretion. 23 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 24 useful purpose would be served by further administrative proceedings, or 25 where the record has been fully developed, it is appropriate to exercise 26 this discretion to direct an immediate award of benefits. 27 (“[T]he decision of whether to remand for further proceedings turns upon 28 the likely utility of such proceedings.”). 22 Where no Id. at 1179 However, where there are 1 outstanding issues that must be resolved before a determination of 2 disability can be made, and it is not clear from the record that the ALJ 3 would be required to find the claimant disabled if all the evidence were 4 properly evaluated, remand is appropriate. Id. at 1179-81. 5 6 Here, remand is the appropriate remedy to allow the ALJ the 7 opportunity to remedy the above-mentioned deficiencies and errors. See, 8 e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 9 further proceedings is appropriate if enhancement of the record would be 10 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 11 (remand appropriate to remedy defects in the record).15 12 13 On remand, the ALJ must correct the above-mentioned deficiencies 14 and errors. 15 that plaintiff’s cervical spine impairment was not “severe”; and (2) in 16 view of the new evidence, review and reconsider his evaluation of both 17 the opinion of Dr. Larsen and plaintiff’s credibility. In addition, the 18 ALJ 19 recontact Dr. Larsen to address any question he might have regarding Dr. 20 Larsen’s findings and/or any perceived inconsistencies between Dr. should Specifically, the ALJ needs to: revisit his evaluation of Dr. (1) revisit his finding Payne’s diagnosis, and 21 22 23 24 25 26 27 28 15 This case was remanded twice, once by this Court in 2007, because ALJ Reason improperly rejected the opinion of plaintiff’s treating physician and improperly discredited plaintiff’s credibility, and once by the Appeals Council in 2008, because ALJ Reason improperly found that plaintiff could return to her past relevant work as a hostess. Thus, this is the third time that this case is being remanded. In remanding this case, the Court is mindful of the Ninth Circuit’s astute comments in Benecke that multiple remands may unfairly “delay much needed income for claimants who are unable to work and are entitled to benefits.” 379 F.3d at 595. Accordingly, the Court directs that this matter be dealt with in an expeditious manner to avoid unnecessary delay and further potential prejudice to plaintiff. 23 1 Larsen’s 2003 and 2004 reports. After correcting the above errors and 2 deficiencies, the ALJ needs to reassess plaintiff’s RFC. 3 additional testimony from a vocational expert likely will be needed to 4 determine what work, if any, plaintiff can perform. Further, 5 6 Lastly, in view of the additional evidence, the ALJ should have a 7 consulting physician examine plaintiff and look at the new records to 8 see if there is any support for plaintiff’s alleged limitations. 9 10 CONCLUSION 11 12 Accordingly, for the reasons stated above, IT IS ORDERED that the 13 decision of the Commissioner is REVERSED, and this case is REMANDED for 14 further proceedings consistent with this Memorandum Opinion and Order. 15 16 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 17 copies of this Memorandum Opinion and Order and the Judgment on counsel 18 for plaintiff and for defendant. 19 20 LET JUDGMENT BE ENTERED ACCORDINGLY. 21 22 DATED: November 3, 2010 23 24 25 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 26 27 28 24
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