Mark Schoening v. Michael J. Astrue, No. 2:2010cv03330 - Document 25 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. See order for further details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARK W. SCHOENING, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 10-03330 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Plaintiff Mark W. Schoening ( Plaintiff ) brings this action 22 seeking to reverse the decision of the Commissioner of the Social 23 Security Administration (the Commissioner or the Agency ) denying his 24 application for Disability Insurance Benefits ( DIB ). 25 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the 26 undersigned United States Magistrate Judge. 27 below, the decision of the Agency is REVERSED and REMANDED for further 28 proceedings. The parties For the reasons stated 1 II. 2 PROCEDURAL HISTORY 3 4 On September 1, 2004, Plaintiff filed an application for Disability 5 Insurance Benefits ( DIB ) claiming that he became disabled on June 1, 6 2002. 7 benefits by initial determination on December 22, 2004. 8 On February 1, 2005, Plaintiff requested a hearing before an ALJ. 9 52). (Administrative Record ( AR ) 162-65). Plaintiff was denied The hearing took place on October 21, 2005. (AR 44-49). (AR (AR 698-711). 10 Plaintiff appeared with counsel and testified. (AR 698). 11 18, Jan 12 benefits. 13 Council reviewed the unfavorable decision of the ALJ. 14 Appeals Council vacated the November 18, 2005 decision and remanded the 15 claim. 2005, Administrative (AR 36-43). Law Judge ( ALJ ) On November Donshbach denied At the request of the Plaintiff, the Appeals (AR 62-64). The (AR 62). 16 17 The second hearing took place in Long Beach, California on April 18 10, 2007 with ALJ Edward C. Graham presiding. (AR 680-697). 19 appeared with counsel and testified. 20 ALJ issued a decision denying Plaintiff benefits. 21 Plaintiff requested the Appeals Council review the ALJ decision, and 22 upon review, the Appeals Council again remanded Plaintiff s claim for 23 a third hearing. (AR 680). Plaintiff On April 20, 2007, the (AR 712-22). The (AR 79-83, 85-87). 24 25 On August 4, 2009, the third hearing again took place in Long 26 Beach, California with ALJ Edward C. Graham presiding. 27 Plaintiff appeared with counsel and testified. 28 2 (AR 664-79). (AR 664). The ALJ 1 issued an unfavorable decision on October 14, 2009. 2 Plaintiff requested review by the Appeals Council which was denied on 3 March 4, 2010. 4 instant action. (AR 9-12, 6-8). (AR 13-29). On May 6, 2010, Plaintiff filed the 5 6 III. 7 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 8 9 To qualify for disability benefits, a claimant must demonstrate a 10 medically determinable physical or mental impairment that prevents him 11 from engaging in substantial gainful activity1 and that is expected to 12 result in death or to last for a continuous period of at least twelve 13 months. 14 42 U.S.C. § 423(d)(1)(A)). 15 incapable of performing the work he previously performed and incapable 16 of performing any other substantial gainful employment that exists in 17 the national economy. 18 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 19 20 21 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 22 23 (1) Is the claimant presently engaged in substantial gainful 24 activity? If so, the claimant is found not disabled. 25 If not, proceed to step two. 26 27 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. § 416.910. 3 1 (2) Is the claimant s impairment 2 claimant is found not disabled. 3 severe? If not, the three. 4 (3) Does the claimant s If so, proceed to step impairment meet or equal the 5 requirements of any impairment listed at 20 C.F.R. Part 6 404, Subpart P, Appendix 1? 7 found disabled. 8 (4) 9 If not, proceed to step four. Is the claimant capable of performing his past work? so, the claimant is found not disabled. 10 11 If so, the claimant is If If not, proceed to step five. (5) Is the claimant able to do any other work? 12 claimant is found disabled. 13 If not, the If so, the claimant is found not disabled. 14 15 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 16 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 416.920(b)-(g)(1). 17 18 The claimant has the burden of proof at steps one through four, and 19 the Commissioner has the burden of proof at step five. Bustamante, 262 20 F.3d at 953-54. 21 establishing an inability to perform the past work, the Commissioner 22 must show that the claimant can perform some other work that exists in 23 significant numbers in the national economy, taking into account the 24 claimant s residual functional capacity ( RFC ),2 age, education and 25 work experience. 26 The Commissioner may do so by the testimony of a vocational expert or If, at step four, the claimant meets his burden of Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). 27 2 Residual functional capacity is the most [one] can still do despite [his] limitations and represents an assessment based on all 28 the relevant evidence. 20 C.F.R. § 416.945(a). 4 1 by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 2 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 3 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 4 claimant 5 limitations, the Grids are inapplicable and the ALJ must take the 6 testimony of a vocational expert. 7 (9th Cir. 2000). has both exertional (strength-related) and When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 8 9 IV. 10 STANDARD OF REVIEW 11 Under 12 42 U.S.C. § 405(g), a district court may review the 13 Commissioner s decision to deny benefits. The court may set aside the 14 Commissioner s decision when the ALJ s findings are based on legal error 15 or are not supported by substantial evidence in the record as a whole. 16 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 17 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 18 Substantial evidence is more than a scintilla, but less than a 19 20 preponderance. 21 which a reasonable person might accept as adequate to support a 22 conclusion. 23 a finding, the court must consider the record as a whole, weighing 24 both 25 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 26 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 27 reasonably support either affirming or reversing that conclusion, the evidence Reddick, 157 F.3d at 720. Id. It is relevant evidence To determine whether substantial evidence supports that supports and evidence 28 5 that detracts from the If the evidence can 1 court may not substitute its judgment for that of the Commissioner. 2 Reddick, 157 F.3d at 720-21. 3 4 V. 5 DISCUSSION 6 7 The ALJ Failed to Provide Specific and Legitimate Reasons To 8 Reject The Treating Physician s Opinion 9 10 Plaintiff contends that the ALJ failed to provide specific and 11 legitimate reasons to reject the opinion of his treating physician, Dr. 12 Sandler. 13 17). 14 consider 15 tolerate non-concentrated forms of pulmonary irritants, Plaintiff s 16 ability to stand and walk in a day, Plaintiff s ability to use his hands 17 for manipulation, and Plaintiff s mental health. 18 Court agrees. (Memorandum in Support of Complaint ( Complaint Memo. ) at 6, Specifically, Plaintiff argues that the ALJ failed to properly Dr. Sandler s findings regarding Plaintiff s ability (Id. at 9-13). to This 19 20 Where a treating physician s opinion is not contradicted by another 21 doctor, it may be rejected only for clear and convincing reasons. 22 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). 23 treating physician s opinion is contradicted by another doctor, the ALJ 24 may not reject this opinion without providing specific, legitimate 25 reasons, supported by substantial evidence in the record. 26 Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)); Rollins v. 27 Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (citing Reddick, 157 F.3d 28 at 725). Even if the Id. (citing The opinions of treating physicians are entitled to special 6 1 weight because the treating physician is hired to cure and has a better 2 opportunity 3 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). to know and observe the claimant as an individual. 4 5 The opinion at issue here is that of Dr. Joel M. Sandler, who the 6 ALJ recognized as Plaintiff s treating physician. (AR 23). Dr. Sandler 7 began treating Plaintiff in February of 2005. 8 demonstrates that Dr. Sandler treated Plaintiff from March of 2007 to 9 July of 2009. Dr. (AR 488). (AR 485-94, 598-02, 604-11, 620-49)3. Sandler completed a residual The record On January 6, 10 2009, functional capacity 11 questionnaire, (AR 486-87), and a mental work restriction questionnaire. 12 (AR 488-494). 13 14 The ALJ rejected Dr. Sandler s January 2009 assessment, even 15 though he []is the treating physician, because the ALJ concluded that 16 Dr. Sandler s opinion was brief, conclusory and inadequately supported 17 by the clinical findings. 18 greater weight to the signs, test results, and medical findings noted 19 in the longitudinal medical records than to an unsupported assessment 20 . . . completed for the sole purpose of qualifying [Plaintiff] for 21 benefits. 22 medical opinion as conclusory and unsupported by clinical findings is 23 contradicted by the record. 24 visit 25 Sandler s findings. 26 (AR 19-20). reports and (AR 19). The ALJ explained that he gives However, the ALJ s rejection of Dr. Sandler s treatment Indeed, the record contains ample office notes which support (AR 598-02, 604-11, 620-49). 3 and explain Dr. For example, Dr. Plaintiff has been a patient of Dr. Sandler since March of 2007. (AR 642). Dr. Sandler documented Plaintiff s office visits on the 27 following dates: 3/5/2007, 11/5/2008, 12/8/2008, 12/17/2008, 1/5/2009, 28 2/5/2009, 3/19/2011, 4/2/2009, 4/22/2009, 5/21/2009, 5/21/2009, and 7/2/2009. (AR 485-89, 598-02, 604-11, 620-49). 7 1 Sandler examined Plaintiff s respiration during physical exams(See AR 2 598, 601), tested Plaintiff for tender points during musculoskeletal 3 physical exams (AR 599, 606), and prescribed Plaintiff medicine for 4 attention deficit disorder (AR 488, 606, 611, 632). 5 concludes 6 conclusory and unsupported by clinical findings is not legitimate. that the ALJ s rejection of Dr. Thus, the Court Sandler s findings as 7 8 1. The ALJ Erred In Rejecting Dr. Sandler s Respiratory Limitations 9 10 11 With respect to Plaintiff s respiratory limitations, Dr. Sandler 12 found that Plaintiff could not tolerate any exposure to dust, fumes, and 13 gases. 14 Plaintiff has a daily nonproductive cough[,] . . . occasional tightness 15 in his chest[,] . . . [he] wheezes at night[,] and uses an albuterol 16 inhaler. 17 currently can walk one block without dyspnea and has to stop. 18 Based on these findings, Dr. Sandler diagnosed Plaintiff with chronic 19 obstructive pulmonary disease [COPD] with an asthmatic component. 20 598, 622, 642). 21 be an active problem for Plaintiff. (AR 487). (AR 642). In his treatment notes, Dr. Sandler noted that In addition, Dr. Sandler noted that [Plaintiff] (Id.). (AR Dr. Sandler noted in July 2009 that COPD continued to (AR 598). 22 23 The ALJ rejected Dr. Sandler s findings regarding Plaintiff s 24 respiratory limitations because he opined that Dr. Sandler s findings 25 were not supported by the information in the treatment notes . 26 20). After rejecting the findings of Dr. Sandler, the ALJ relied on the 27 findings of a consulting physician, Dr. Taylor, to determine Plaintiff s 28 respiratory limitations. (Id.). (AR The ALJ noted that Dr. Taylor found 8 1 a history of COPD [chronic obstructive pulmonary disease], but normal 2 chest and lung excursions without wheezing, rhonchi or rubs. 3 Dr. Taylor recommended that Plaintiff be only occasionally . . . 4 exposed to any fumes, dust, pollutions [sic], extremes in temperature, 5 gasses, and chemicals based on pulmonary problems. 6 therefore concluded that Plaintiff needs to avoid only concentrated 7 exposure to pulmonary irritants. (AR 560). (Id.). The ALJ (AR 19). 8 The 9 Court finds that the ALJ s rejection of Dr. Sandler s 10 respiratory limitations because they are allegedly not supported by the 11 doctor s treatment notes is not a legitimate reason. 12 ALJ rejected Dr. Sandler s findings as brief and conclusory, the record 13 contradicts 14 Plaintiff s lungs during office visits, Dr. Sandler diagnosed Plaintiff 15 with COPD. 16 office visits, Dr. Sandler noted in July 2009 that COPD continued to be 17 an active problem for Plaintiff. (AR 598). Additionally, Dr. Sandler s 18 findings are corroborated by the findings of Dr. Sedgh, who conducted 19 an internal medicine consultation and found that Plaintiff suffered from 20 [a]sthma and expiratory weezing. 21 his functional assessment that Plaintiff should avoid exposure to dust 22 and fumes secondary to asthma. 23 ALJ 24 respiratory condition as conclusory and unsupported by Dr. Sandler s 25 treatment notes, these reasons are not supported by the record. 26 // 27 // 28 // this finding (AR 598, 601). rejected Dr. as set forth above. To the extent the After examining While Plaintiff s lungs were clear on some Sandler s (AR 432). (Id.). opinion 9 Dr. Sedgh concluded in Thus, to the extent that the with respect to Plaintiff s 2. 1 The ALJ Erred In Rejecting Dr. Sandler s Diagnosis of Fibromyalgia and Plaintiff s Physical Limitations 2 3 With 4 respect to Plaintiff s physical condition, Dr. Sandler 5 diagnosed Plaintiff with fibromyalgia. (AR 599, 596). Dr. Sandler made 6 this assessment after he found [m]ultiple tender points in [the] 7 muscles of [Plaintiff s] trunk [and] upper and lower extremities [which 8 meet] the criteria for fibromyalgia. 9 notes, Dr. Sander stated that [plaintiff] has tenderness over the 10 paralumbar area and over the lumbar vertebrae at about L1, 2, and 3. 11 (AR 12 Arthritis and Chronic Pain Syndrome. (AR 598, 604, 606). 13 these findings, Dr. Sandler limited the amount of weight that Plaintiff 14 may lift and carry, as well as his ability to sit, stand, or walk for 15 extended periods of time. 16 Plaintiff s hands for simple grasping, pushing & pulling, and fine 17 manipulation. 18 medications such as Lortab and Neurontin. 606). Dr. Sandler (AR 486). also (AR 599). diagnosed (AR 486). Plaintiff In his treatment with Rheumatoid In light of Dr. Sandler limited the use of Dr. Sandler also prescribed Plaintiff pain (AR 598). 19 20 The ALJ rejected Dr. Sandler s diagnosis of fibromyalgia because 21 the medical records do not show . . . objective corroborative findings 22 or show that the claimant has ongoing treatment for fibromyalgia. 23 21). In forming his opinion, the ALJ relied on the report of Dr. Taylor 24 who found no evidence of deformities, swelling or tenderness to direct 25 palpation of any joint. 26 only had subjective pain complaints and [reported] that he sometimes 27 says he has subjective tenderness. 28 that fibromyalgia, if (AR 21, 558). it is 10 The ALJ stated that Plaintiff (AR 21). severe, (AR The ALJ further stated should result in objective 1 functional restrictions . . . [but] the medical records do not show any 2 severe functional limitations secondary to pain. 3 therefore 4 limitations of the hands or fingers. concluded that Plaintiff demonstrates (Id.). no The ALJ functional (Id.). 5 6 The ALJ failed to provide legitimate reasons to reject Dr. 7 Sandler s diagnosis of fibromyalgia. The Ninth Circuit has recognized 8 that objective findings do not establish the presence or absence of 9 fibromyalgia. Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 10 370 F.3d 869, 872 (9th Cir. 2004), overruled in part on other grounds, 11 Abatie v Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir. 2006). 12 As stated in Jordan: 13 14 [F]ibromyalgia s cause or causes are unknown, there is no 15 cure, and, of greatest importance to disability law, its 16 symptoms are entirely subjective. 17 tests for the presence or severity of fibromyalgia. There are no laboratory 18 19 370 F.3d at 872; accord Salomaa v. Honda Long Term Disability Plan, __ 20 F.3d __, 2011 WL 2040934 at *10 (9th Cir. May 26, 2011). 21 fibromyalgia diagnosis can only be confirmed by a specific test where 22 a patient reports pain in five parts of the body and when at least 23 eleven of eighteen points cause pain when palpated by an examiner s 24 thumb. 25 fibromyalgia 26 Moreover, Dr. Sandler found multiple tender points in [the] muscles of 27 [Plaintiff s] trunk [and] upper and lower extremities [which meet] the 28 criteria for fibromyalgia. (Id.). Instead, a Here, the ALJ erroneously rejected Dr. Sandler s diagnosis based on the (AR 599). 11 lack of objective findings. Dr. Sandler also prescribed 1 Plaintiff pain medicines Lortab and 2 treatments for fibromyalgia. 3 provide specific and legitimate reasons to reject the evidence of 4 Plaintiff s fibromyalgia or analyze its affect on Plaintiff s ability 5 to work. (AR 598). Neurontin which are common On remand, the ALJ must either 6 7 8 3. The ALJ Erred In Rejecting Dr. Sandler s Opinion Regarding Plaintiff s Mental Capacity 9 10 With respect to Plaintiff s mental health, Dr. Sandler diagnosed 11 Plaintiff with attention deficit disorder, and noted that he becomes 12 easily upset and has difficulty focusing and ordering his thoughts. (AR 13 488-499). Plaintiff s medical records indicate a long history of mental 14 health treatment with a variety of different physicians.4 Specifically, 15 at issue in the present case is Dr. Sandler s mental work restriction 16 questionnaire which he completed on January 6, 2009. 17 assessing the affect of Plaintiff s mental condition on his ability to 18 perform work, Dr. Sandler found that Plaintiff has a severe impairment 19 in his ability to complete a normal work day without interruptions from 20 psychologically based symptoms and performing at a consistent pace 21 without an unreasonable number of and length of rest periods. (AR 489). 22 In addition, Dr. Sandler noted that Plaintiff has a marked impairment 23 in his ability to: maintain attention for two hour segments, to work in 24 coordination with or in close proximity to other people without being (AR 488-94). In 25 4 Plaintiff has been diagnosed with ADD (AR 255-56), Affective 26 (Mood) Disorder (AR 663), Depressive Disorder (AR 402), and Borderline 27 Intellectual Functioning (AR 402). Consultative physician Dr. Izzi diagnosed Plaintiff with depressive disorder, polysubstance abuse, and 28 borderline intellectual functioning. (AR 551). (See also AR 239-40, 259, 400-02, 420-26, 582-592, 663, 670). 12 1 distracted by them, to make simple work-related decisions, and to get 2 along with co-workers or peers without distracting them or exhibiting 3 behavior extremes. 4 a number of medications designed to treat his mental condition including 5 Ritalin, Desipramine, and Diazepam. (AR 598, 632). (AR 488-89). Dr. Sandler prescribed Plaintiff with 6 7 The ALJ rejected Dr. Sandler s mental work restrictions because Dr. 8 Sandler is not a mental health specialist and because he was not 9 treating the Plaintiff for mental health problems. (AR 23-24). The ALJ 10 therefore declined to endorse Dr. Sandler s assessment and [gave] no 11 weight to any of the functional limitations alleged on his disability 12 form. 13 testing was done [and that] [n]o psychiatric evaluation was performed. 14 (AR 23) (emphasis in original). 15 the 16 physician, Dr. Izzi (AR 23-24, 551). (AR 24). The ALJ specifically emphasized that NO intellectual less restrictive mental As a result, the ALJ relied instead on limitations reported by consultative 17 18 The ALJ did not give legitimate reasons based on the record for 19 rejecting Dr. Sandler s assessment of Plaintiff s mental condition. 20 Although the ALJ emphasized that no intellectual testing or psychiatric 21 evaluations were performed, Dr. Sandler noted in an office visit report 22 on January 5, 2009 that the Plaintiff has ADD which has been documented 23 with a TOVA test5, which was authorized on March 8, 2007, and done with 24 Dr. Middleton. 25 2007 that Plaintiff was diagnosed with ADHD which had been validated (AR 23, 488, 606). Dr. Sandler also noted on March 5, 26 5 27 The T.O.V.A. [Test of Variables of Attention] is an objective, neurophysiological measure of attention, not a subjective rating of 28 behavior. THE TOVA COMPANY, http://www.tovatest.com (last visited June 15, 2011). 13 1 by a psychologist in the past. (AR 611). Although Dr. Sandler is not 2 a mental health specialist, as noted earlier, he treated the Plaintiff 3 for mental health conditions by prescribing him psychiatric drugs in 4 addition to treating the Plaintiff for other health conditions. 5 598, 622, 632). Plaintiff s extensive mental health records corroborate 6 Dr. Sandler s medical assessment. (See supra n.4). 7 of Dr. Sandler s mental health restrictions because he is not a mental 8 health care specialist is not a proper rationale in light of the 9 extensive record of mental health treatment and tests from a variety of (AR The ALJ s rejection 10 treating doctors, including psychologists. 11 of expertise in the mental health field may be a legitimate reason to 12 discount a doctor s opinion on mental limitations, here it was not a 13 legitimate reason. 14 specialist, given the quantity and quality of evidence contained in the 15 records regarding the mental health treatment he provided Plaintiff, the 16 ALJ should have given some weight to the mental limitation findings of 17 Dr. Sandler. 18 reasons to reject Dr. Sandler s opinion or incorporate the mental health 19 limitations provided by Dr. Sandler into the RFC determination. 20 Although ordinarily a lack Although Dr. Sandler is not a mental health The ALJ must either provide specific and legitimate Remand for further proceedings is appropriate where additional 21 proceedings could remedy defects in the Commissioner s decision. 22 Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000); Kail v. Heckler, 23 722 F.2d 1496, 1497 (9th Cir. 1984). 24 specific and legitimate reasons for rejecting the treating physician s 25 opinion, or, instead, to fully credit the opinion, the case must be 26 remanded to remedy this defect. 27 provide specific and legitimate reasons to reject Dr. Sandler s opinion See Because the ALJ failed to provide Upon remand, the ALJ must either 28 14 1 or incorporate the limitations provided by Dr. Sandler into the RFC 2 determination. 3 4 VII. 5 CONCLUSION 6 7 Consistent with the foregoing, IT IS ORDERED that judgment be 8 entered REVERSING the decision of the Commissioner and REMANDING this 9 matter for further proceedings consistent with this decision. IT IS 10 FURTHER ORDERED that the Clerk of the Court serve copies of this Order 11 and the Judgment on counsel for both parties. 12 13 DATED: June 21, 2011 14 15 16 __________/S/________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 15

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