Gloria Rodriguez-Curtis v. Michael J. Astrue, No. 2:2010cv02794 - Document 18 (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 ORDER FOR FURTHER DETAILS) (lmh)
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Gloria Rodriguez-Curtis v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 GLORIA RODRIGUEZ-CURTIS, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-02794-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. 27 28 Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Plaintiff raises the following issues: 1. Whether the Administrative Law Judge’s (“ALJ”) finding that Dockets.Justia.com 1 Plaintiff 2 substantial evidence. 3 can perform medium work is supported by (JS at 4.) 4 5 This Memorandum Opinion will constitute the Court’s findings of 6 fact and conclusions of law. 7 concludes 8 Commissioner must be reversed. that for the After reviewing the matter, the Court reasons set forth, the decision of the 9 10 I 11 THE ALJ’S DETERMINATION THAT PLAINTIFF IS CAPABLE OF 12 MEDIUM EXERTIONAL WORK IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE 13 Plaintiff filed an application for Supplemental Security Income 14 (“SSI”) on September 28, 2004. (AR 19.) After administrative denials, 15 she requested a hearing in 2005, which finally occurred on June 19, 16 2007. (AR 398-412.) 17 issued. (AR 329-333.) 18 Council which, on June 25, 2008, vacated the ALJ’s decision and 19 remanded the matter for further hearing. (AR 37-40.) On November 27, 2007, an adverse decision was Plaintiff requested review with the Appeals 20 A supplemental hearing was held on March 16, 2009. (AR 413-441.) 21 Thereafter, the ALJ issued an unfavorable decision on September 8, 22 2009. (AR 19-28.) In that decision, the ALJ determined that Plaintiff 23 retained the residual functional capacity (“RFC”) for medium work with 24 occasional climbing, stooping, kneeling, crouching, and crawling; and 25 a restriction from climbing ropes. (AR 24.) 26 unsuccessfully requested review with the Appeals Council (AR 13-15, 7- 27 9), and this action ensued. 28 2 Thereafter, Plaintiff 1 A. 2 After finding that Plaintiff was capable of medium exertional the The ALJ’s Decision. 3 work, ALJ determined that, at Step Four of the sequential 4 evaluation process, Plaintiff can perform her past relevant work as a 5 Home Attendant and Project Director. (AR 24, 27.) 6 The RFC assessed by the ALJ exceeds the maximum functional 7 capacity as determined by a board certified orthopedist who conducted 8 a complete evaluation (“CE”) on April 25, 2005 at the request of the 9 Department of Social Services. (AR 163-167.) Dr. Moses took a history 10 from Plaintiff, performed a complete physical examination, and 11 assessed that Plaintiff can lift and carry 25 pounds occasionally and 12 10 pounds frequently, with other limitations not relevant to this 13 decision. 14 medium work. (See 20 C.F.R. §416.967(c).) 15 the regulation, involves lifting no more than 50 pounds, with frequent 16 lifting or carrying of objects weighing up to 25 pounds. In contrast, 17 light work under the regulation involves lifting no more than 20 18 pounds occasionally, with frequent lifting or carrying of objects 19 weighing up to 10 pounds. (See 20 C.F.R. §416.967(b).) These exertional limits are less than those defined as Medium work, as defined in 20 On May 12, 2005, the State Agency physician rendered an opinion 21 that Plaintiff could lift and carry 20 pounds occasionally and 10 22 pounds frequently. 23 opinion. This was generally consistent with Dr. Moses’ 24 The ALJ rejected Dr. Moses’ opinion, and thus the Court’s task is 25 to determine whether the rejection of that opinion was based on clear 26 and 27 uncontroverted. 28 1995). convincing reasons, because that opinion was, in effect, See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 3 1 The ALJ first noted that Plaintiff reported to Dr. Moses that she 2 engaged in certain activities of daily living which, according to the 3 ALJ, contradicted Dr. Moses’ assessment of Plaintiff’s exertional 4 abilities. These activities included going to the post office and the 5 grocery store without assistance, walk 2-3 short blocks, sitting and 6 standing 1-2 hours at a time, driving, performing light housekeeping, 7 and lifting up to 10 pounds. (AR 26.) 8 these purported activities are in fact included in Dr. Moses’ report. 9 The Commissioner gamely concedes that these descriptions by the ALJ of 10 Plaintiff’s daily living activities were woven out of whole cloth, but 11 he still stands behind the ALJ’s decision, citing Dr. Moses’ notation 12 that Plaintiff drove herself to the interview and did light housework. 13 (See AR at 163.) 14 Plaintiff’s testimony at the hearing, arguing that she had a “fairly 15 active social life that involved driving to and from church more than 16 once a week, going to lunch at a senior center, volunteering at a 17 convalescent home, and receiving guests.” (JS at 16-17.) 18 Commissioner fails to address, however, is how such daily living 19 activities are transferrable to the requirements of full-time medium 20 exertional work. As Plaintiff notes, none of The Commissioner goes further and points to What the 21 The ALJ’s next reason for rejecting Dr. Moses’ opinion is based 22 on his conclusion that the opinion relies on Plaintiff’s subjective 23 allegations which were taken “at face value and merely reiterated ... 24 in [the] report ...” (AR 26.) 25 reliance on the failure of Dr. Moses to do specific lifting tests, and 26 his lack of reliance on diagnostic imaging which assertedly would show 27 a condition that would limit Plaintiff’s ability to lift and carry 25 28 pounds occasionally or 10 pounds frequently. (JS at 17, citing AR 26.) The Commissioner cites the ALJ’s 4 1 In response to this, the Court observes that, having adjudicated 2 literally hundreds of Social Security cases, many of which involve 3 assessments of lifting capacity and other exertional abilities by 4 physicians, the Court has never seen a case in which a physician 5 actually conducted a specific lifting test with weights. 6 reach such conclusions based on their expertise, and through other 7 forms of objective testing. 8 a Diplomate of the American Board of Orthopaedic Surgery, he would 9 obviously be qualified to render such an opinion. Physicians Dr. Moses performed such testing, and as Moreover, the mere 10 fact that Plaintiff indicated her belief that she could carry 20 11 pounds, and Dr. Moses found she could lift 25 pounds, appears to be 12 nothing more than a coincidence, and does not support an inference 13 that Dr. Moses simply parroted Plaintiff’s subjective assessments of 14 her abilities. 15 The Court reaches a similar conclusion with regard to the ALJ’s 16 reasoning that Plaintiff’s lack of narcotic pain medication or 17 physical therapy fails to support the exertional restrictions noted by 18 Dr. Moses. 19 contention that in making such an assessment, the ALJ was inserting 20 his own medical opinion, which, of course, he is not qualified to do. 21 Finally, the ALJ discounts Dr. Moses’ opinion because it is over Indeed, it is difficult to disagree with Plaintiff’s 22 four years old. This is followed by the ALJ’s statement that 23 “[Plaintiff] has continued to obtain positive straight leg results at 24 follow up appointments, ...” (AR 26.) Certainly, if the ALJ felt that 25 this opinion was stale, he should have developed the record and 26 ordered another consultative examination. 27 opinions regarding Plaintiff’s exertional abilities would appear to be 28 not inconsistent with later medical evidence in the record, and of 5 In any event, Dr. Moses’ 1 course, there is no opinion in the record contrary to that of Dr. 2 Moses. 3 The ALJ’S rejection of the opinion of the State Agency physician 4 because it was premised on Dr. Moses’ evaluation is unsupportable for 5 the same reasons. 6 Finally, the Commissioner invites the Court to find harmless 7 error based on a vocational analysis which posits that Plaintiff had 8 at least four years of Specific Vocational Preparation (“SVP”) for the 9 program director position as it would be performed in the national 10 economy, according to the Dictionary of Occupational Titles (“DOT”). 11 The Court declines to enter into such an analysis, as it is not 12 premised on any evidence in the record, or expert testimony by a 13 vocational expert. 14 The Court is mindful of Plaintiff’s request that this matter be 15 remanded for an award of benefits. 16 application was filed almost seven years ago. 17 however, that further evidence can be developed on remand, and full 18 consideration should be given to the existing medical evidence. 19 Court certainly hopes, however, that based on the age of this case, 20 the Commissioner will expedite the scheduling of a new hearing on 21 remand. 22 23 24 Indeed, Plaintiff’s original The Court believes, For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 25 26 27 The DATED: February 15, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 28 6
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