Arthur Aragon v. Michael J. Astrue, No. 2:2010cv00255 - Document 16 (C.D. Cal. 2010)
Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is granted and defendants request for relief is denied; and (2) the Commissioners decision is reversed, and the action is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered accordingly. See order for further details. (jy)
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Arthur Aragon v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 ARTHUR ARAGON, aka ARTHUR CRUZ ARAGON, ) Case No. CV 10-0255-RC ) ) Plaintiff, ) ) vs. ) OPINION AND ORDER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security,) ) Defendant. ) ) 17 18 Plaintiff Arthur Aragon, aka Arthur Cruz Aragon, filed a 19 complaint on January 13, 2010, seeking review of the Commissioner’s 20 decision denying his application for disability benefits. 21 2010, the Commissioner answered the complaint, and the parties filed a 22 joint stipulation on August 13, 2010. On May 25, 23 24 25 BACKGROUND On December 5, 2006, plaintiff, who was born on January 10, 1957, 26 applied for disability benefits under Title II of the Social Security 27 Act (“Act”), 42 U.S.C. § 423, claiming an inability to work since 28 August 1, 2005, due to cervical, thoracic and lumbar spine problems. Dockets.Justia.com 1 A.R. 10, 74-76, 83. The plaintiff’s application was initially denied 2 on March 2, 2007, and was denied again on July 9, 2007, following 3 reconsideration. 4 administrative hearing, which was held before Administrative Law Judge 5 Lawrence D. Wheeler (“the ALJ”) on June 18, 2008. 6 September 29, 2008, the ALJ issued a decision finding plaintiff is not 7 disabled. 8 Appeals Council, which denied review on November 13, 2009. A.R. 55-65. A.R. 7-18. The plaintiff then requested an A.R. 28-50. On The plaintiff appealed this decision to the A.R. 1-4. 9 10 DISCUSSION 11 I 12 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 13 review the Commissioner’s decision denying plaintiff Title II 14 disability benefits to determine whether his findings are supported by 15 substantial evidence and he used the proper legal standards in 16 reaching his decision. 17 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 18 claimant is “disabled” for the purpose of receiving benefits under the 19 Act if he is unable to engage in any substantial gainful activity due 20 to an impairment which has lasted, or is expected to last, for a 21 continuous period of at least twelve months. 22 423(d)(1)(A); 20 C.F.R. § 404.1505(a). 23 of establishing a prima facie case of disability.” 24 Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 25 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. The 42 U.S.C. § “The claimant bears the burden Roberts v. 26 27 28 The Commissioner has promulgated regulations establishing a fivestep sequential evaluation process for the ALJ to follow in a 2 1 disability case. 20 C.F.R. § 404.1520. In the First Step, the ALJ 2 must determine whether the claimant is currently engaged in 3 substantial gainful activity. 4 the Second Step, the ALJ must determine whether the claimant has a 5 severe impairment or combination of impairments significantly limiting 6 him from performing basic work activities. 7 If so, in the Third Step, the ALJ must determine whether the claimant 8 has an impairment or combination of impairments that meets or equals 9 the requirements of the Listing of Impairments (“Listing”), 20 C.F.R. 20 C.F.R. § 404.1520(b). If not, in 20 C.F.R. § 404.1520(c). 10 § 404, Subpart P, App. 1. 20 C.F.R. § 404.1520(d). If not, in the 11 Fourth Step, the ALJ must determine whether the claimant has 12 sufficient residual functional capacity despite the impairment or 13 various limitations to perform his past work. 14 404.1520(f). 15 Commissioner to show the claimant can perform other work that exists 16 in significant numbers in the national economy. 17 404.1520(g). 20 C.F.R. § If not, in Step Five, the burden shifts to the 20 C.F.R. § 18 19 Applying the five-step sequential evaluation process, the ALJ 20 found plaintiff has not engaged in substantial gainful activity since 21 the alleged onset date of August 1, 2005. 22 found plaintiff “has ‘severe’ impairments of the cervical spine 23 (primary) and thoracolumbar spine” (Step Two); however, he does not 24 have an impairment or combination of impairments that meets or equals 25 a listed impairment. 26 is unable to perform his past relevant work as an auto mechanic. 27 (Step Four). 28 significant number of jobs in the national economy; therefore, he is (Step Three). (Step One). The ALJ then The ALJ next determined plaintiff Finally, the ALJ found plaintiff can perform a 3 1 not disabled. (Step Five). 2 3 4 II A claimant’s residual functional capacity (“the RFC”) is what he 5 can still do despite his physical, mental, nonexertional, and other 6 limitations. 7 see also Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th 8 Cir. 2009) (RFC is “a summary of what the claimant is capable of doing 9 (for example, how much weight he can lift).”). Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); Here, the ALJ found 10 plaintiff has RFC to perform light work1 “that requires no more than 11 occasional climbing, stooping or crouching. 12 plaintiff contends the ALJ’s decision is not supported by substantial 13 evidence because the ALJ failed to properly consider the opinion of 14 examining physician Roger S. Sohn, M.D., an orthopedic surgeon. 15 plaintiff is correct. A.R. 17. However, The 16 17 On December 31, 2004, plaintiff injured his neck in a work- 18 related accident. A.R. 134, 233. On February 8, 2006, Dr. Sohn 19 examined plaintiff for a surgical consultation, and opined surgery was 20 21 22 23 24 25 26 27 28 1 Under Social Security regulations, “[l]ight work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the ability to do substantially all of these activities.” 20 C.F.R. § 404.1567(b). “[T]he full range of light work requires standing or walking for up to two-thirds of the workday.” Gallant v. Heckler, 753 F.2d 1450, 1454 n.1 (9th Cir. 1984); SSR 83-10, 1983 WL 31251, *6. 4 1 a reasonable option because conservative treatment had failed. 2 134-39. 3 MRI taken in April 2005, which showed a C3-C4 broad-based central left 4 paracentral disc herniation (possible extrusion) and smaller findings 5 at C4-C5, C5-C6, and C6-C7, with C6-C7 flattening the ventral margin 6 of the spinal cord. 7 operated on plaintiff, performing “left C3 through C7 laminoplasties 8 and lateral nerve root decompressions from C3 to C7[,] [an] 9 [a]pplication of Medtronic plates and screws for support[,] [and] 10 A.R. In reaching this opinion, Dr. Sohn reviewed a cervical spine A.R. 138. On June 9, 2006, Alan Rashkin, M.D., NuVasive spinal cord monitoring.” A.R. 146-47. 11 12 On March 8, 2007, Dr. Sohn reexamined plaintiff and diagnosed him 13 as having thoracolumbar strain. A.R. 223-37. Cervical spine x-rays 14 showed internal fixation at C3-C4, C4-C5, C5-C6 and C6-C7. 15 Dr. Sohn opined “[w]ith regard to the cervical spine, [plaintiff] is 16 limited to light work only and no repetitive motions of the cervical 17 spine[,]” and, “[w]ith respect to the thoracolumbar spine, he is 18 limited to no very heavy work.”2 A.R. 228. A.R. 234. 19 20 21 22 23 24 25 26 27 28 2 California workers’ compensation guidelines published in January 2005 do not discuss limitations of “light work only” and “no very heavy work.” See Schedule for Rating Permanent Disabilities, Spine and Torso Guidelines (Labor Code of California, January 2005). Rather, these limitations were in the previous 1997 version of the guidelines, which defined light work as “work in a standing or walking position, with a minimum of demands for physical effort” and repetitive motion of the neck or back (i.e., the cervical spine) as “contemplat[ing] the individual has lost approximately 50% of pre-injury capacity for flexing, extending, bending, and rotating [the] neck or back.” Schedule for Rating Permanent Disabilities, Spine and Torso Guidelines, 2-15 (Labor Code of California, April 1997). Under the 1997 version of the California workers’ compensation guidelines, a disability precluding “very heavy work” 5 1 “[T]he ALJ may only reject . . . [an] examining physician’s 2 uncontradicted medical opinion based on ‘clear and convincing 3 reasons.’” 4 (9th Cir. 2008) (citation omitted); Widmark v. Barnhart, 454 F.3d 5 1063, 1066 (9th Cir. 2006). 6 doctor, the opinion of an examining doctor can be rejected only for 7 specific and legitimate reasons that are supported by substantial 8 evidence in the record.” 9 Admin., 166 F.3d 1294, 1298-99 (9th Cir. 1999); Ryan v. Comm’r of Soc. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 And “[e]ven if contradicted by another Regennitter v. Comm’r of the Soc. Sec. 10 Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Here, although the ALJ 11 “generally concur[red] with” Dr. Sohn’s opinion limiting plaintiff “to 12 light work only[,]” he rejected Dr. Sohn’s opinion that plaintiff is 13 limited to “no repetitive motions of the cervical spine[,]” 14 determining “no need” for this restriction. 15 contends the ALJ’s assessment of Dr. Sohn’s opinion “fails to account” 16 for the definition of light work as promulgated under California 17 workers’ compensation law. 18 agrees. A.R. 16. Jt. Stip. at 10:3-11:15. The plaintiff The Court 19 20 Physicians evaluating an individual’s disability for California 21 workers’ compensation purposes use different terminology than that 22 used to evaluate a claimant’s disability for Social Security purposes. 23 Desrosiers v. Sec. of Health & Human Serv., 846 F.2d 573, 576 (9th 24 Cir. 1988); Payan v. Chater, 959 F. Supp. 1197, 1202-03 (C.D. Cal. 25 26 27 28 contemplates an individual who “has lost approximately 25% of pre-injury capacity for performing such activities as bending, stooping, lifting, pushing, pulling and climbing or other activities involving comparable physical effort.” Id. at 2-14. 6 1 1996). In considering medical opinions utilizing California workers’ 2 compensation terminology, the ALJ “is entitled to draw inferences 3 ‘logically flowing from the evidence.’” 4 544 (9th Cir. 1996) (quoting Sample v. Schweiker, 694 F.2d 639, 642 5 (9th Cir. 1982)); Payan, 959 F. Supp. at 1203. 6 doing, “[t]he ALJ’s decision . . . should explain the basis for any 7 material inference the ALJ has drawn from those opinions so that 8 meaningful judicial review will be facilitated.” 9 181 F. Supp. 2d 1099, 1106 (C.D. Cal. 2002). Macri v. Chater, 93 F.3d 540, Nevertheless, in so Booth v. Barnhart, 10 11 Here, the ALJ inferred from Dr. Sohn’s opinion that plaintiff has 12 the RFC to perform “light work” under the Act, and that inference is 13 unreasonable. 14 work only” was made under the 1997 California workers’ compensation 15 guidelines, which defined light work as requiring “a minimum of 16 demands for physical effort.” 17 Disabilities, Spine and Torso Guidelines, 2-15 (Labor Code of 18 California, April 1997). 19 compensation guidelines, light work was a more severe limitation that 20 a “disability precluding substantial work,” which “contemplates the 21 individual has lost approximately 75% of pre-injury capacity for 22 performing such activities as bending, stooping, lifting, pushing, 23 pulling, and climbing or other activities involving comparable 24 physical effort.” 25 minimum of demands for physical effort,” as set forth in the 1997 26 California workers’ compensation guidelines definition of light work, 27 contemplates that the individual has lost at least 75% of his pre- 28 injury capacity for performing lifting, bending, stooping, pushing, Dr. Sohn’s opinion that plaintiff “is limited to light Id. Schedule for Rating Permanent Under the 1997 California workers’ Accordingly, it is reasonable to infer that “a 7 1 pulling, and similar physical activities. Macri, 93 F.3d at 543-44; 2 Payan, 959 F. Supp. at 1203. 3 25 pounds when he worked as an automobile mechanic, A.R. 84; see also 4 A.R. 46 (vocational expert testified plaintiff’s past relevant work as 5 an automobile mechanic, Dictionary of Occupational Titles (“DOT”) no. 6 620.261-010, was medium work),3 if he lost 75% of his pre-injury 7 capacity for lifting, he cannot now perform light work, which under 8 the Act requires frequent lifting or carrying of up to 10 pounds. 9 C.F.R. § 404.1567(b). Since plaintiff frequently lifted up to 20 Therefore, the ALJ erred in failing to 10 “adequately ‘translate’ Dr. [Sohn’s] opinion into Social Security 11 terms[.]” 12 relied on Dr. Sohn’s opinion in assessing plaintiff’s RFC,4 see A.R. 13 10-18, “substantial evidence does not support the [ALJ’s RFC] 14 assessment.” 15 2007); Widmark, 454 F.3d at 1070. 16 support the ALJ’s step-five determination, since it was based on this 17 // 18 // Booth 161 F. Supp. 2d at 1109. Moreover, since the ALJ Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. “Nor does substantial evidence 19 3 20 21 22 23 24 25 26 27 28 The DOT, which is the Commissioner’s primary source of reliable vocational information, Johnson v. Shalala, 60 F.3d 1428, 1434 n.6 (9th Cir. 1995); Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990), identifies automobile mechanic as medium work. U.S. Dep’t of Labor, Dictionary of Occupational Titles, 562 (4th ed. 1991). Under Social Security regulations, “[m]edium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c). 4 The ALJ gave “corroborative weight to [a] state agency assessment” dated March 1, 2007, that opined plaintiff could perform light work. A.R. 16, 200-04. The parties, however, dispute whether this assessment was completed by a physician, see Jt. Stip. at 12:25, 22:13-23:7 & n.10, and it appears to the Court it was not. 8 1 erroneous RFC assessment.”5 Lingenfelter, 504 F.3d at 1041. 2 3 4 V When the Commissioner’s decision is not supported by substantial 5 evidence, the Court has authority to affirm, modify, or reverse the 6 Commissioner’s decision “with or without remanding the cause for 7 rehearing.” 8 1076 (9th Cir. 2002). 9 is appropriate if enhancement of the record would be useful.” 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, “Remand for further administrative proceedings Benecke 10 v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Here, remand is 11 appropriate so the ALJ can properly consider Dr. Sohn’s opinion, 12 assess plaintiff’s RFC and determine whether plaintiff is disabled. 13 Widmark, 454 F.3d at 1070; Bunnell v. Barnhart, 336 F.3d 1112, 1116 14 (9th Cir. 2003). 15 16 17 ORDER IT IS ORDERED that: (1) plaintiff’s request for relief is granted 18 and defendant’s request for relief is denied; and (2) the 19 Commissioner’s decision is reversed, and the action is remanded to the 20 Social Security Administration for further proceedings consistent with 21 this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 22 405(g), and Judgment shall be entered accordingly. 23 DATE: October 20, 2010 24 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 25 5 26 27 28 Having reached this conclusion, the Court need not address plaintiff’s claim the ALJ failed to offer sufficient reasons for rejecting the portion of Dr. Sohn’s opinion addressing plaintiff’s cervical spine limitations. See Jt. Stip. at 11:16-12:14. R&R-MDO\10-0255.mdo - 10/19/10 9
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