Delia Armenta v. Michael J. Astrue, No. 2:2010cv00162 - Document 16 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION; ORDER by Magistrate Judge Oswald Parada. IT THEREFORE IS ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security, and remanding this matter for further administrative proceedings consistent with this Memorandum Opinion. (mrgo)
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Delia Armenta v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DELIA ARMENTA, Plaintiff, 12 v. 13 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 ) Case No. CV 10-162-OP ) ) ) MEMORANDUM OPINION; ORDER ) ) ) ) ) ) ) 17 The Court1 now rules as follows with respect to the disputed issues listed 18 19 in the Joint Stipulation (“JS”).2 20 /// 21 1 22 23 24 25 26 27 28 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 8, 14.) 2 As the Court advised the parties in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative Record (“AR”), and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 1 Dockets.Justia.com 1 I. 2 DISPUTED ISSUES 3 4 5 As reflected in the Joint Stipulation, the disputed issues which Plaintiff is raising as the grounds for reversal and/or remand are as follows: 1. evaluated Plaintiff’s Residual Functional Capacity (“RFC”); 6 7 2. Whether the ALJ posed a proper hypothetical question to the vocational expert (“VE”); 8 9 Whether the Administrative Law Judge (“ALJ”) properly 3. Whether the ALJ properly resolve any possible conflict between 10 the VE’s testimony and the Dictionary of Occupational Titles 11 (“DOT”); 12 4. impairments met or equaled a listed impairment; 13 14 Whether the ALJ properly considered whether Plaintiff’s 5. Whether the ALJ properly considered the opinions of Plaintiff’s treating physician; and 15 16 6. 17 (JS at 3.) Whether the ALJ properly considered Plaintiff’s credibility. 18 II. 19 STANDARD OF REVIEW 20 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 21 decision to determine whether the Commissioner’s findings are supported by 22 substantial evidence and whether the proper legal standards were applied. 23 DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence 24 means “more than a mere scintilla” but less than a preponderance. Richardson 25 v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); 26 Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 27 1988). Substantial evidence is “such relevant evidence as a reasonable mind 28 might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 2 1 401 (citation omitted). The Court must review the record as a whole and 2 consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 3 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one 4 rational interpretation, the Commissioner’s decision must be upheld. Gallant v. 5 Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). 6 III. 7 DISCUSSION 8 A. The ALJ’s Decision. The ALJ found that Plaintiff has the severe impairments of history of left 9 10 kidney cancer, status post nephrectomy; degenerative osteoarthritis of the 11 bilateral knees, status post surgical repair; status post right carpal tunnel 12 release; status post right shoulder surgery; and morbid obesity. (AR at 14.) The ALJ found Plaintiff had the RFC to perform sedentary work, “except 13 14 no continuous/strenuous dominant right hand manipulation (clarified to mean 15 power gripping/grasping) and therefore, manual dexterity can be performed for 16 light activity (i.e., not requiring power gripping/grasping); and, no reaching at 17 or above shoulder level on the right.” (Id.) Relying on the testimony of the VE to determine the extent to which 18 19 Plaintiff’s limitations eroded the occupational base of unskilled sedentary 20 work, the ALJ asked the VE whether jobs exist in the national economy for an 21 individual with Plaintiff’s age, education, work experience, and RFC. (Id. at 22 17.) Based on the testimony of the VE, the ALJ determined Plaintiff could 23 perform the requirements of such work as telephone order clerk (DOT No. 24 209.567-014), and charge account clerk (DOT No. 205.367-014). (AR at 17- 25 18.) 26 /// 27 /// 28 /// 3 1 B. The ALJ Failed to Properly Consider the Opinions of Plaintiff’s 2 Treating Physicians. 3 A July 31, 2008, Medical Source Statement by an unidentifiable treating 4 source3 concluded, as interpreted by the ALJ, that Plaintiff could not perform 5 even sedentary work activities due to degenerative osteoarthritis of multiple 6 sites. (AR at 330-31.) In her decision, the ALJ explained that she credited the 7 opinions of the consultative examiner and State agency physician over that of 8 “the treating physician,” as articulated in the July 31, 2008, Medical Source 9 Statement. (Id. at 16.) The ALJ offered the following discussion concerning 10 the treating physician’s opinions: 11 As for the opinion evidence, the undersigned credits the 12 consultative examiner and the State agency [physician] over the 13 treating physician based on supportability with medical signs and 14 laboratory findings; consistency with the record; and area of 15 specialization. The medical source statement (MSS) from this 16 treating physician appears to be based primarily on the subjective 17 statements of the claimant. The underlying documentation from the 18 treating source provided in the record reveals little, if any, objective 19 20 21 22 23 24 25 26 27 28 3 The Court notes that although it is unable to read the name of the physician who completed the Medical Source Statement, it is clearly not the signature of Elana Harway, M.D. or Thor Gjerdrum, M.D., Plaintiff’s treating orthopaedists, Uzma Chaudhry, M.D., Plaintiff’s primary care physician, Carolyn Griffith, M.D., Plaintiff’s treating gynecologist, P.J. Benipal, M.D., Plaintiff’s treating gastroenterologist, or Craig Canfield, M.D., Plaintiff’s treating Urologist. In the Joint Stipulation, Plaintiff identifies this doctor as “Dr. Santein, who was plaintiff’s most recent treating physician at Santa Barbara County Public Health Department.” (JS at 32.) However, the physician’s identity is not readily apparent from the record. As a result, the physician’s identity clearly was not known to the ALJ at the time she authored her opinion. (AR at 16.) 4 1 observation of signs or symptoms or administration of an appropriate 2 diagnostic examination along with a description of results. Such lack 3 of documentation fails to support the limitations provided in the 4 MSS. 5 6 (Id. at 16 (citations omitted).) It is well established in the Ninth Circuit that a treating physician’s 7 opinion is entitled to special weight, because a treating physician is employed 8 to cure and has a greater opportunity to know and observe the patient as an 9 individual. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). “The 10 treating physician’s opinion is not, however, necessarily conclusive as to either 11 a physical condition or the ultimate issue of disability.” Magallanes v. Bowen, 12 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician’s 13 opinion depends on whether it is supported by sufficient medical data and is 14 consistent with other evidence in the record. 20 C.F.R. §§ 404.1527(d), 15 416.927(d). Where the treating physician’s opinion is uncontroverted by 16 another doctor, it may be rejected only for “clear and convincing” reasons. 17 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter v. Sullivan, 923 F.2d 18 1391, 1396 (9th Cir. 1991). If the treating physician’s opinion is controverted, 19 as appears to be the case here, it may be rejected only if the ALJ makes 20 findings setting forth specific and legitimate reasons that are based on the 21 substantial evidence of record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th 22 Cir. 2002); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 23 (9th Cir. 1987). The ALJ can “meet this burden by setting out a detailed and 24 thorough summary of the facts and conflicting clinical evidence, stating his 25 interpretation thereof, and making findings.” Thomas, 278 F.3d at 957 26 (citation and quotation omitted). 27 28 First, the ALJ’s reliance on this single document by an unidentified physician as the paramount “treating physician” opinion is inexplicable. 5 1 Although the form states that it is “For Treating Physician To Complete,” and 2 the signature of the author appears three other times in the record (AR at 334, 3 336, 340), as explained in footnote 3 above, the author clearly is not one of the 4 physicians who had been regularly treating Plaintiff at the time of the ALJ’s 5 opinion. As for the extensive medical evidence originating from Plaintiff’s 6 long list of treating physicians, the ALJ was silent. Surely, the ALJ cannot 7 disregard the plethora of treatment notes from other treating sources by 8 dismissing a single document from an unknown physician. See Thomas, 278 9 F.3d at 957 (ALJ can reject treating source opinion “by setting out a detailed 10 and thorough summary of the facts and conflicting clinical evidence, stating his 11 interpretation thereof, and making findings.”). 12 Moreover, the ALJ’s reasons for rejecting the Medical Source Statement 13 are not legitimate. Although stated in several different ways, the ALJ rejected 14 the Medical Source Statement first and foremost because it relied on Plaintiff’s 15 subjective complaints rather than “medical signs and laboratory findings” and 16 the rest of the medical record. However, as discussed below, the Court finds 17 that the ALJ improperly rejected Plaintiff’s credibility. Although an ALJ may 18 properly reject the findings of a treating physician premised largely on the 19 subjective complaints of the Plaintiff when those complaints have been 20 “properly discounted” by the ALJ, that was not the case here. Morgan v. 21 Comm’r of Soc. Sec. Admin, 169 F.3d 595, 602 (9th Cir. 1999); Fair v. Bowen, 22 885 F.2d 597, 605 (9th Cir. 1989). 23 In addition, the ALJ concluded that the physician’s opinions were not 24 consistent with the record. (AR at 16.) However, the record is replete with 25 medical evidence documenting Plaintiff’s impairments. Specifically, with 26 respect to Plaintiff’s orthopedic impairments, the record shows extensive 27 treatment, multiple surgeries, continued use of narcotic pain medication, 28 unsuccessful steroid injections, and ultimately, a potential recommendation for 6 1 joint replacement surgery. (Id. at 190, 195-96, 199, 201, 211, 321, 323, 328- 2 29, 348, 380, 389, 391, 440, 445, 447-51.) Finally, the ALJ rejected this “treating physician” opinion due to “area 3 4 of, specialization.” (Id. at 16.) Presumably, the ALJ was relying on the fact 5 that consultative examiner Jonathan Gurdin, M.D., is an orthopaedic specialist. 6 (Id. at 16, 279-81.) However, without being able to identify the physician who 7 completed the Medical Source Statement, it would have been impossible for 8 the ALJ to determine whether or not that physician had equivalent expertise to 9 that of the consultative physician. The ALJ’s failure to provide legally sufficient reasons for discounting 10 11 the Medical Source Statement, and more importantly, her total failure to 12 address any of the findings of Plaintiff’s numerous identifiable treating sources 13 warrants remand. See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (in 14 disregarding the findings of a treating physician, the ALJ must “provide 15 detailed, reasoned and legitimate rationales” and must relate any “objective 16 factors” he identifies to “the specific medical opinions and findings he 17 rejects”); see, e.g., Nelson v. Barnhart, No. C 00-2986 MMC, 2003 WL 18 297738, at *4 (N.D. Cal. Feb. 4, 2003) (“Where an ALJ fails to ‘give 19 sufficiently specific reasons for rejecting the conclusion of [a physician],’ it is 20 proper to remand the matter for ‘proper consideration of the physicians’ 21 evidence.’”) (alteration in original) (citation omitted). Based on the foregoing, the Court finds that remand is appropriate for 22 23 the ALJ to set forth legally sufficient reasons for rejecting the opinions of 24 Plaintiff’s treating physicians, if the ALJ again determines that such a rejection 25 is warranted.4 26 /// 27 28 4 The Court expresses no view on the merits. 7 1 2 C. The ALJ Failed to Properly Consider the Plaintiff’s Credibility. An ALJ’s assessment of pain severity and claimant credibility is entitled 3 to “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); 4 Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ’s 5 disbelief of a claimant’s testimony is a critical factor in a decision to deny 6 benefits, the ALJ must make explicit credibility findings. Rashad v. Sullivan, 7 903 F.2d 1229, 1231 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 8 (9th Cir. 1981); see also Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) 9 (an implicit finding that claimant was not credible is insufficient). 10 Under the “Cotton test,” where the claimant has produced objective 11 medical evidence of an impairment which could reasonably be expected to 12 produce some degree of pain and/or other symptoms, and the record is devoid 13 of any affirmative evidence of malingering, the ALJ may reject the claimant’s 14 testimony regarding the severity of the claimant’s pain and/or other symptoms 15 only if the ALJ makes specific findings stating clear and convincing reasons 16 for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see 17 also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 18 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th 19 Cir. 1991). 20 To determine whether a claimant’s testimony regarding the severity of 21 her symptoms is credible, the ALJ may consider the following evidence: (1) 22 ordinary techniques of credibility evaluation, such as the claimant’s reputation 23 for lying, prior inconsistent statements concerning the symptoms, and other 24 testimony by the claimant that appears less than candid; (2) unexplained or 25 inadequately explained failure to seek treatment or to follow a prescribed 26 course of treatment; (3) the claimant’s daily activities; and (4) testimony from 27 physicians and third parties concerning the nature, severity, and effect of the 28 claimant’s symptoms. Thomas, 278 F.3d at 958-59; see also Smolen, 80 F.3d 8 1 at 1284. The Social Security Rulings (“SSR”) further provide that an 2 individual may be less credible for failing to follow prescribed treatment 3 without cause. SSR 96-7p. 4 Here, the ALJ found that Plaintiff’s “medically determinable 5 impairments could reasonably be expected to cause the alleged symptoms,” but 6 concluded that her “statements concerning the intensity, persistence and 7 limiting effects of these symptoms are not credible to the extent they are 8 inconsistent with the above residual functional capacity.” (AR at 15.) The 9 ALJ relied on three factors in rejecting Plaintiff’s credibility: (1) in the last 10 three years, treating physicians have recommended only limited and 11 conservative treatment; (2) Plaintiff was noted to be noncompliant with her 12 dietary recommendations without good reason; and (3) Plaintiff’s allegations of 13 impairment are not fully supported by the objective medical evidence. (Id.) 14 First, the ALJ’s conclusion that within the three years prior to her 15 decision, Plaintiff’s treating physicians have responded to her alleged 16 impairments with limited and conservative treatment is not a convincing reason 17 for discounting Plaintiff’s credibility. Despite not having health insurance and 18 having to rely on public benefits, Plaintiff has received extensive treatment for 19 her impairments. Prior to the three-year period cited by the ALJ, Plaintiff had 20 undergone three knee surgeries. (Id. at 190, 195-96, 199, 201, 211.) 21 Moreover, within the three-year period cited by the ALJ, Plaintiff underwent 22 right-shoulder surgery and right-hand carpal tunnel release. (Id. at 449-51.) 23 During this same three-year period, Plaintiff was also routinely prescribed 24 Vicodin for her pain. (Id. at 321, 323, 329, 348, 380, 389, 391.) In addition, 25 Plaintiff received multiple steroid injections for her shoulder and knee pain, 26 and was referred for physical therapy. (Id. at 196, 328-29, 440, 447-48.) 27 28 On September 13, 2006, Plaintiff’s treating orthopedist, Thor C. Gjerdrum, M.D., noted that steroid injections had been unsuccessful in treating 9 1 Plaintiff’s knee pain and recommended that she receive Synvisc or hyaluronic 2 acid injections. (Id. at 195.) At that time, Dr. Gjerdrum stated that “[t]he 3 alternative of a total knee are tibial osteotomies and this is somewhat drastic for 4 a person as young as she is in her forties.” (Id.) In an April 10, 2007, report, 5 consultative orthopedist, Jonathan M. Gurdin, M.D., referred to Dr. Gjerdrum’s 6 recommendation regarding the Synvisc injections. Dr. Gurdin noted that “[t]he 7 injections were going to be done, but [Plaintiff] was found to have a left renal 8 carcinoma and underwent a nephrectomy in February of [2007].” (Id. at 279.) 9 This evidence contradicts the ALJ’s conclusion that Plaintiff had 10 received limited and conservative treatment in the three years preceding the 11 ALJ’s decision. To the extent further treatment was not pursued, the lack of 12 treatment was justified by Plaintiff’s physician declaring that more invasive 13 treatment was too drastic in light of Plaintiff’s age, and that Plaintiff was 14 unable to seek orthopedic treatment while she recovered from renal cancer. 15 Incidentally, less than three months after the ALJ’s opinion, Plaintiff’s treating 16 orthopedist, who had continuously treated Plaintiff during the three-year period 17 cited by the ALJ, concluded that steroid and Synvisc injections had been 18 unsuccessful in treating Plaintiff’s knee pain and concluded that “she may well 19 be a candidate for a joint replacement.” (Id. at 445.) The doctor explained that 20 “a debridement of her knee and, more importantly, a diagnostic arthroscopy to 21 determine whether or not she would benefit from a replacement of the medial 22 compartment versus a total knee arthroplasty would be helpful.” (Id.) 23 Next, the ALJ’s conclusion that Plaintiff was not compliant with dietary 24 recommendations is not a convincing reason for rejecting Plaintiff’s credibility. 25 The ALJ cites two exhibits for her conclusion, 9F/3 and 12F/51. However, 26 these exhibits are copies of the same report, dated June 26, 2007. (Id. at 315, 27 382.) In that report, Plaintiff’s treating physician, Uzma Chaudhry, M.D., 28 noted that Plaintiff “admits she is drinking a lot of soda.” (Id. at 315.) Dr. 10 1 Chaudhry assessed Plaintiff as suffering from “[b]ilateral lower extremity 2 edema, secondary to dietary noncompliance.” (Id.) Dr. Chaudhry 3 recommended that Plaintiff reduce her salt intake, follow guidelines for water 4 intake, and “stay away from soda, etc.” (Id.) Although Dr. Chaudhry refers to 5 Plaintiff’s consumption of soda as “dietary noncompliance,” nowhere in the 6 record of treatment prior to this date does it reflect a recommendation that 7 Plaintiff not drink soda.5 It was only after Plaintiff had admitted to drinking 8 soda that her doctor advised her to limit soda in her diet. Also of significance 9 is the fact that nowhere in the record following this advisement is there any 10 indication that Plaintiff continued to drink “a lot” of soda in violation of Dr. 11 Chaudhry’s dietary recommendations. Thus, there is no evidence that Plaintiff 12 drank soda in conscious disregard of her doctor’s dietary recommendations.6 13 The only factor remaining of the three factors relied upon by the ALJ in 14 rejecting Plaintiff’s credibility is the ALJ’s conclusion that Plaintiff’s 15 complaints are not supported by the objective medical evidence. However, an 16 ALJ may not disregard a Plaintiff’s testimony solely because it is not 17 18 19 20 5 Such a recommendation is found in a treatment note from July 9, 2008, over a year after the notation regarding Plaintiff’s soda consumption. (AR at 338.) 6 21 22 23 24 25 26 27 28 Notably, Defendant attempts to link Plaintiff’s soda consumption with doctor recommendations that she lose weight. (JS at 39-40.) Not only did the ALJ not rely on this factor in her discussion of Plaintiff’s dietary noncompliance, but Defendant’s argument is not supported by the record. There is no indication that Plaintiff was consuming full-calorie soda, as opposed to diet soda. Because her doctor’s concern with Plaintiff’s soda consumption was with respect to her salt intake, rather than her weight, consumption of diet soda would have been equally alarming to the doctor. Thus, the doctor’s recommendation that Plaintiff stop drinking soda is not proof that Plaintiff was drinking full-calorie soda in noncompliance with recommendations that she attempt to lose weight. 11 1 substantiated affirmatively by objective medical evidence. Rollins v. 2 Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Moreover, as previously 3 determined, the ALJ failed to properly consider the medical evidence of record. 4 In the absence of sufficient reasons for rejecting Plaintiff’s testimony, 5 the ALJ’s credibility determination was error. Accordingly, the Court finds 6 that remand is appropriate for the ALJ to set forth legally sufficient reasons for 7 rejecting Plaintiff’s testimony, if the ALJ again determines that such a rejection 8 is warranted.7 9 D. Plaintiff’s Remaining Claims. 10 In her four remaining claims, Plaintiff argues that the ALJ failed to 11 properly evaluate her RFC, posed an improper hypothetical question to the VE, 12 failed to resolve a conflict between the VE’s testimony and the DOT, and failed 13 to properly consider whether Plaintiff’s impairments met or equaled a listed 14 impairment. Any conclusions as to Plaintiff’s RFC, the limitations to be 15 included in a hypothetical question to the VE, the jobs the VE might find 16 Plaintiff capable of performing, and whether Plaintiff’s impairments meet or 17 equal a listing, are dependent upon findings relating to Plaintiff’s impairments 18 as reflected in her subjective complaints and her treating physicians’ opinions. 19 Accordingly, on remand to reconsider Plaintiff’s credibility and the weight of 20 the treating physicians’ opinions, the ALJ also shall reconsider Plaintiff’s RFC, 21 elicit new VE testimony, and reconsider whether Plaintiff’s impairments meet 22 or equal a listed impairment. 23 E. This Case Should Be Remanded for Further Administrative 24 Proceedings. 25 The law is well established that remand for further proceedings is 26 27 28 7 As with the discussion of the treating physicians’ opinions, the Court expresses no view on Plaintiff’s credibility. 12 1 appropriate where additional proceedings could remedy defects in the 2 Commissioner’s decision. Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 3 1984). Remand for payment of benefits is appropriate where no useful purpose 4 would be served by further administrative proceedings, Kornock v. Harris, 648 5 F.2d 525, 527 (9th Cir. 1980); where the record has been fully developed, 6 Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand 7 would unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 8 716, 719 (9th Cir. 1985). 9 10 Here, the Court finds that further administrative proceedings would serve a useful purpose and remedy the administrative defects discussed herein. 11 IV. 12 ORDER 13 Based on the foregoing, IT THEREFORE IS ORDERED that Judgment 14 be entered reversing the decision of the Commissioner of Social Security, and 15 remanding this matter for further administrative proceedings consistent with 16 this Memorandum Opinion. 17 18 19 DATED: November 17, 2010 HONORABLE OSWALD PARADA United States Magistrate Judge 20 21 22 23 24 25 26 27 28 13
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