Maurillo Vargas Juarez v. Michael J. Astrue, No. 2:2010cv00435 - Document 24 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, This matter will be remanded for further hearing consistent with this Memorandum Opinion. (SEE OPINION FOR FURTHER DETAILS) (lmh)
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Maurillo Vargas Juarez v. Michael J. Astrue Doc. 24 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 MAURILLO VARGAS JUAREZ, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-00435-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff’s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record (“AR”) before the Commissioner. 25 Joint Stipulation (“JS”), and the Commissioner has filed the certified 26 AR. Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge (“ALJ”) erred in the Dockets.Justia.com 1 assessment 2 capacity; 3 2. 4 of Plaintiff’s physical residual functional Whether the ALJ erred in finding that Plaintiff did not have a “severe” mental impairment; and 5 3. Whether the ALJ erred in the credibility findings. 6 (JS at 2-3.) 7 8 9 This Memorandum Opinion will constitute the Court’s findings of fact and conclusions of law. 10 concludes that for the 11 After reviewing the matter, the Court reasons set forth, the decision of the Commissioner must be reversed. 12 13 I 14 THE ALJ ERRED IN REJECTING THE RESIDUAL FUNCTIONAL CAPACITY 15 ASSESSMENT OF PLAINTIFF’S TREATING PHYSICIAN 16 WITHOUT PROVIDING SPECIFIC AND LEGITIMATE REASONS 17 18 A. Introduction. 19 Plaintiff’s treating physician, Dr. Capen, is an orthopedic 20 surgeon. Plaintiff was first evaluated by Dr. Capen on October 10, 21 2006, 22 accidents connected to his work as a laborer. (AR 210-226.) 23 injuries were sustained from accidents which occurred on May 30, 2002; 24 June 20, 2005; February 28, 2006; and March 6, 2006. (AR 215-217.) 25 Plaintiff treated with Dr. Capen, or another physician in his office 26 (Dr. Jarminski) until December 11, 2007. (AR 184-206, 394-414.) 27 Dr. Capen’s report of December 11, 2007, he diagnosed Plaintiff with 28 left shoulder impingement; lumbar sprain - strain syndrome; L4-5 disc based on injuries Plaintiff 2 sustained during industrial These In 1 protrusion with annular tear; and L5-S1 right-sided radiculopathy per 2 EMG. (AR 396.) 3 exertional limitations: Plaintiff could occasionally lift and carry 20 4 pounds, and frequently lift and carry less than ten pounds.1 (AR 393.) 5 Plaintiff was also seen in a one-time consultative examination 6 performed at the request of the Department of Social Services by 7 orthopedist 8 examination of May 15, 2007, he diagnosed Plaintiff with impingement 9 syndrome left shoulder; and, degenerative disc disease lumbar spine. an Bleecker. impression (AR 335-338.) that Plaintiff After 10 He 11 can Dr. lift Bleecker’s occasionally, and ten pounds frequently. (AR 338.) 12 rendered Dr. On April 30, 2008, Dr. Capen provided the following 25 pounds Dr. Geiger, a neurologist, examined Plaintiff at the request of 13 Dr. Capen on February 8, 2007. (AR 156-182.) Dr. Geiger reviewed 14 extensive medical treatment records, but it is apparent that his 15 examination was not done for the purpose of testing Plaintiff’s 16 exertional abilities. 17 regard. Indeed, Dr. Geiger rendered no opinion in that 18 Finally, the State Agency physician, Dr. Halpern, completed a 19 Physical Residual Functional Capacity Assessment on May 25, 2007 (AR 20 347-352), and concluded that Plaintiff could occasionally lift 20 21 pounds, and frequently could lift ten pounds. (AR 348.) 22 however, did not indicate what records she may have reviewed in coming 23 to these conclusions. 24 Dr. Halpern, The ALJ assessed that Plaintiff was capable of light exertional 25 level work, as defined in 20 C.F.R. §404.1567(b). (AR 16.) According 26 to the definitions provided in that regulation, “light” work entails 27 1 28 The remainder of the exertional limitations are not relevant to this discussion. 3 1 the capacity to lift no more than 20 pounds at a time with frequent 2 lifting or carrying of objects weighing up to ten pounds. 3 In reaching his assessment, the ALJ found that Plaintiff’s 4 residual functional capacity (“RFC”) is “generally consistent with the 5 May 2007 report of consultative examiner Dr. H. Harlan Bleecker, ...” 6 (AR 17.) 7 2007 report of the non-examining medical consultant, Dr. Halpern. 8 (Id.) 9 consistent” with the April 2008 report of Dr. Capen. (Id.) He also found it to be generally consistent with the May Finally, he found that his RFC assessment was also “generally While 10 acknowledging Dr. Capen’s opinion that Plaintiff could lift or carry 11 less than ten pounds frequently, he rejected that limitation for the 12 following reasons: 13 “... because there is no evidence that supports this level 14 of restriction, this opinion is not compatible with the May 15 2000 opinions of the consultative examiner and the medical 16 consultant (exhibit citations omitted), and this opinion is 17 not compatible with the medical record as a whole (exhibit 18 citations omitted).” 19 (AR 17.) 20 21 B. Analysis. 22 In the hierarchy of the evaluation of physicians’ opinions, 23 Social Security analysis gives greatest weight, generally, to that of 24 the treating physician. 25 controverted by that of another examining physician, an ALJ may only 26 reject the treating physician’s opinion by setting forth “specific and 27 legitimate” reasons based on substantial evidence in the record. If the treating physician’s opinion is 28 4 See 1 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).2 2 It is the Court’s task, then, to analyze whether the reasons 3 provided by the ALJ, and those reasons only3 provide substantial 4 evidence to support the ALJ’s conclusion. 5 The first reason provided by the ALJ is that Dr. Capen’s opinion 6 provides “no evidence that supports [his] level of restriction.” 7 must be mindful, in reviewing reasons provided by the ALJ such as 8 this, that the main contradiction between Dr. Capen’s opinion and the 9 other physicians’ opinions is that Dr. Capen assessed that Plaintiff 10 could lift and carry less than ten pounds frequently, while the other 11 physicians 12 frequently. 13 legal ramifications because it sets up a demarcation between light 14 exertional work and work which requires lesser exertional ability, 15 such as sedentary work. 16 Capen’s conclusions? 17 diagnostic 18 protrusion of 5-5 millimeters at L4-5 (AR 153), and an abnormal EMG 19 study consistent with right L5-S1 radiculopathy. (AR 286.) 20 also found abnormal objective physical examination findings, such as opined that Plaintiff could lift up to ten One pounds This would appear to be a fine line, but has significant reports But is there “no evidence” that supports Dr. This is clearly not the case. indicate, for example, a Dr. Capen’s significant disc Dr. Capen 21 22 23 24 25 26 27 28 2 The Commissioner makes a somewhat surprising argument, in passing, that while he acknowledges the holding of Lester, and many cases which establish the same principle, he also believes that, “to the extent the Ninth Circuit’s judicially-created standard exceeds the requirements set forth by Congress and by the Commissioner at the behest of Congress, it would appear to be improper.” (JS at 6.) This argument would appear to be in the form of an aside, as the Commissioner analyzes Plaintiff’s case in light of the “specific and legitimate reasons” principles annunciated in Lester and subsequent cases. 3 See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 5 1 tenderness and limited range of motion of the lumbar spine, positive 2 straight leg raising bilaterally, and positive impingement maneuver, 3 positive Neer’s test, positive Hawkin’s maneuver, and restriction of 4 motion in the left shoulder. 5 findings constitute “no evidence” supporting Dr. Capen’s diagnostic 6 conclusions especially, when, as the Court has noted, the distinction 7 between Dr. Capen’s findings that Plaintiff could lift less than ten 8 pounds frequently, and the other physicians’ findings that Plaintiff 9 could lift up to ten pounds frequently, would appear to be very slight There is simply no way that these 10 from a medical point of view. 11 the ALJ’s conclusion that there is no evidence supporting the level of 12 restrictions 13 legitimate finding. assessed by Certainly, the Court cannot find that Dr. Capen constitutes a specific and 14 The ALJ also rejected Dr. Capen’s opinion because it was not 15 compatible with the opinions of the consultative examiner and the 16 medical consultant. 17 reason. 18 between a treating physician’s conclusions and the conclusions of 19 consultative and/or non-examining physicians would amount to specific 20 and legitimate reasons. 21 but the explanation of why the differences are justified, and that the 22 treating physician’s opinion should be rejected, that amounts to a 23 specific and legitimate reason. 24 Social Security Administration, 169 F.3d 595, 602-603 (9th Cir. 1999) 25 for the proposition that the mere fact of the inconsistency between 26 the report of a treating physician and that of a consultative examiner 27 and a non-examining physician is sufficient basis upon which to reject 28 the opinion of the treating physician. Again, this is not a specific and legitimate If it were, then the citation, per se, of any inconsistency It is not the citation to such differences, The Commissioner cites Morgan v. 6 This in not, however, a 1 correct reading of the holding in Morgan. In that case, the appellate 2 court went through a recital of the evidence, and particularly cited 3 numerous instances in which the opinion of the treating physician was 4 not supported by objective evidence. (See Morgan, 169 F.3d at 600- 5 602.) The Commissioner’s citation to Batson v. Commissioner of Social 6 Security, 359 F.3d 1190, 1195 (9th Cir. 2004) is no more availing. 7 Batson did not hold that the mere fact of a discrepancy between 8 treating and consultative examiners’ opinions constituted specific and 9 legitimate reasons to reject the former; rather, in Batson, the 10 appellate court upheld the discounting of the views of the treating 11 physician because the opinion was in the form of a checklist, did not 12 have 13 statements and assessments of the claimants’ medical condition, and 14 was based on the claimants’ subjective descriptions of pain. (Id. at 15 1194.) supporting objective evidence, was contradicted by other 16 The third reason cited by the ALJ, that the treating physician’s 17 opinion was not compatible with the medical record as a whole, is one 18 which is often cited by ALJs in their opinions, and is normally found 19 to be insufficient to constitute a specific and legitimate reason. 20 Based on the foregoing, the Court finds merit in Plaintiff’s 21 first issue, which will require remand so that Dr. Capen’s opinion may 22 be assessed pursuant to proper legal standards. 23 24 II 25 THE ALJ ERRED IN ASSESSING PLAINTIFF’S MENTAL STATE 26 The ALJ, at Step Two of the sequential evaluation process, found 27 that Plaintiff has no severe mental impairment or combination of 28 mental impairments. (AR 15.) The ALJ found that the finding of no 7 1 severe mental impairment was substantiated by the psychiatric 2 diagnosis of Dr. Scheinbaum conducted on August 31, 2006, which found 3 that Plaintiff has no evidence of any significant psychiatric symptoms 4 to warrant a diagnosis on Axis I. (AR 251.) 5 that Dr. Scheinbaum’s report is not included in the Administrative 6 Record; rather, the ALJ seemed to form her opinion based upon a 7 summary of Dr. Scheinbaum’s report contained in the extensive report 8 of Dr. Friedman, a psychiatrist who examined Plaintiff on March 15, 9 2007 at the request of Plaintiff’s worker’s compensation lawyer. (AR It is curious to note 10 236-263.) Further, the ALJ selectively quoted from Dr. Friedman’s 11 report, concluding that he found that Plaintiff is not precluded from 12 a psychiatric viewpoint from performing his usual work. (AR 15.) 13 As to the ALJ’s reliance on Dr. Scheinbaum, the Court cannot 14 validate that based upon a summary of that report contained in another 15 psychiatrist’s report. 16 examine Dr. Scheinbaum’s report, noted that it failed to provide any 17 results of psychological testing. 18 often 19 professional. 20 critique by both himself and by Dr. Servedio, who also signed his 21 report, of Dr. Scheinbaum’s conclusions. 22 addressed by the ALJ, who simply seemed to accept the summary of Dr. 23 Scheinbaum’s apparent conclusion that Plaintiff has no psychiatric 24 diagnosis. Moreover, as Plaintiff’s counsel aptly points out, the ALJ 25 selectively quoted from the opinion of Dr. Friedman, but omitted any 26 discussion of Dr. Friedman’s conclusion that Plaintiff was totally 27 disabled from a psychiatric viewpoint. (AR 261.) 28 that Plaintiff has slight to moderate impairment in his ability to cited as a Further, Dr. Friedman, who apparently did basis to The lack of objective testing is reject the opinion of a medical Moreover, Dr. Friedman’s report contains a detailed 8 None of this, however, is Dr. Friedman found 1 maintain a work pace appropriate to given work. This conclusion, 2 which also would have significant impact on Plaintiff’s vocational 3 abilities if it were accepted, was seemingly ignored by the ALJ. 4 Finally, the ALJ’s reliance upon the psychiatric evaluation 5 conducted by Dr. Ritvo on May 18, 2007 at the request of the 6 Department of Social Services, is also unsupportable, because Dr. 7 Ritvo apparently did nothing more than conduct a mental status 8 examination without doing any psychological testing whatsoever. (AR 9 341-345.) 10 For the foregoing reasons, on remand, the issue of whether 11 Plaintiff has a severe mental impairment will be properly reevaluated. 12 13 III 14 THE ALJ ERRED IN THE CREDIBILITY FINDINGS 15 The ALJ rejected Plaintiff’s credibility, finding that his 16 assertions were internally inconsistent and incompatible with the 17 evidence of record, that although he contends he lacks the ability to 18 work, he has reported that he runs errands without assistance, engages 19 in 20 Furthermore, the ALJ found there is no evidence to support the level 21 of restrictions claimed by Plaintiff because they are inconsistent 22 with medical evidence. 23 credibility because of his past history of alcoholism. (AR 17.) walking on a daily basis, and performs household chores. The ALJ finally detracted from Plaintiff’s 24 It is well established that an ALJ may reject a plaintiff’s 25 testimony regarding severity of pain or other symptoms if, after a 26 claimant produces objective medical evidence of an impairment or 27 impairments sufficient to cause such pain, findings are made which set 28 forth specific, clear and convincing 9 reasons for rejecting 1 credibility. 2 Here, Plaintiff certainly produced objective medical evidence 3 which could reasonably be expected to produce the symptoms of which he 4 complained. 5 insufficient. The fact that Plaintiff is able to run errands, or walk 6 on a daily basis, or do some household chores is not related to the 7 level of exertion required on a sustained basis to perform productive 8 work. The reasons for rejecting his testimony, however, are See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 9 The finding that Plaintiff’s credibility is weakened by a past 10 history of alcoholism is little more than a non sequitur, and the 11 Court will not devote any attention to it, other than indicating it 12 will be rejected, and will not be cited as a reason for detracting 13 from credibility on remand, unless specific and clear reasons are set 14 forth which tie a past history of alcoholism to a present lack of 15 credibility. 16 Finally, the ALJ’s notation that Plaintiff’s subjective claims 17 are not compatible with “the medical record as a whole” has the same 18 infirmity that the Court has previously noted because such a generic 19 finding is not amenable to judicial review. 20 citation to specific opinions in the record, the Court has already 21 addressed the limitations of those opinions as a basis upon which to 22 rely in assessing Plaintiff’s exertional capacities. 23 With regard to the Plaintiff’s credibility will be reassessed on remand pursuant to 24 correct legal standards. 25 // 26 // 27 // 28 // 10 1 2 3 For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 4 5 6 DATED: February 9, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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