Maria D. Aparicio Pineda v. Michael J. Astrue, No. 2:2010cv04598 - Document 14 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. (See Order for details) (db)
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Maria D. Aparicio Pineda v. Michael J. Astrue Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 10 11 12 MARIA D. APARICIO PINEDA, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-04598-MLG MEMORANDUM OPINION AND ORDER 19 Plaintiff Maria D. Aparicio Pineda (“Plaintiff”) seeks review of 20 the Commissioner’s final decision denying her application for disability 21 insurance benefits (“DIB”) pursuant to Title II of the Social Security 22 Act. For the reasons stated below, the Commissioner’s decision is 23 reversed, and this action is remanded for further proceedings. 24 25 I. Factual and Procedural Background 26 Plaintiff was born on May 3, 1963. (Administrative Record (“AR”) at 27 25). She has relevant work experience as a machine operator and stock 28 clerk. (AR at 25). Dockets.Justia.com 1 Plaintiff protectively filed an application for DIB on September 8, 2 2006, alleging that she has been disabled since February 3, 2004, due to 3 arthritis in her back. (AR at 15, 116-20, 137). The Social Security 4 Administration 5 reconsideration. (AR at 15, 83-86, 88-92). 6 denied Plaintiff’s application initially and on An administrative hearing was held before Administrative Law Judge 7 Richard A. Urbin (“the ALJ”) on March 18, 2009. (AR at 27-65). 8 Plaintiff, who was represented by counsel, testified at the hearing with 9 the assistance of an interpreter. (AR at 30-57, 59-60). A vocational 10 expert also testified at the hearing. (AR at 57-62). The ALJ issued a 11 decision on March 18, 2009, denying Plaintiff’s application. (AR at 30- 12 36). The ALJ found that Plaintiff: (1) has not engaged in substantial 13 gainful activity since her alleged onset date (step 1); (2) suffers from 14 medically determinable impairments that in combination were severe 15 throughout the period under consideration1 (step 2); (3) does not have 16 any impairments that meet or equal the criteria of a listed impairment 17 (step 3); (4) has a residual functional capacity (“RFC”) to lift and 18 carry 10 pounds frequently and 20 pounds occasionally, sit for six hours 19 in an eight-hour workday, and stand and/or walk for six hours in an 20 eight-hour workday; (5) is unable to perform her past relevant work 21 (step 4); but is able to perform other jobs that exist in significant 22 23 24 25 26 27 28 1 Specifically, the ALJ found the following: (1) from February 3, 2004, through January 2006, Plaintiff had congenital stenosis and degenerative spondylosis of the cervical spine, degenerative changes of the thoracic spine, right carpal tunnel syndrome, headaches, and gastroesophageal reflux disease; (2) beginning on January 1, 2006, Plaintiff had degenerative changes of the lumbosacral spine; (3) beginning on August 11, 2006, Plaintiff had fibromyalgia; (4) beginning in September 2006, Plaintiff had a plantar spur and degenerative changes of the first metatarsal/tarsal joint on the right foot; (5) beginning on December 17, 2007, Plaintiff suffered from depression; and (6) beginning on August 15, 2008, Plaintiff was obese. (AR at 18-19). 2 1 numbers in the economy, including the jobs of basket filler, garment 2 bagger, and conveyer belt worker. (AR at 18-19, 25-26). The Appeals 3 Council denied review on April 26, 2010. (AR at 1-4). 4 Plaintiff commenced this action for judicial review on June 22, 5 2010. The parties filed a joint statement of disputed issues (“Joint 6 Stipulation) on December 22, 2010. Plaintiff contends that the ALJ 7 failed to give proper consideration to 8 opinions 9 testimony. Plaintiff seeks remand for payment of benefits or, in the 10 alternative, remand for further administrative proceedings. (Joint 11 Stipulation at 25). The Commissioner requests that the ALJ’s decision be 12 affirmed. (Joint Stipulation at 25). of her treating physicians her mental impairment, the and her subjective symptom 13 14 15 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 16 Commissioner’s decision to deny benefits. The Commissioner’s or ALJ’s 17 findings and decision should be upheld if they are free from legal error 18 and are supported by substantial evidence based on the record as a 19 whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 20 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 21 evidence means such evidence as a reasonable person might accept as 22 adequate 23 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more 24 than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d 25 at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 26 2006)). To determine whether substantial evidence supports a finding, 27 the reviewing court “must review the administrative record as a whole, 28 weighing both the evidence that supports and the evidence that detracts to support a conclusion. 3 Richardson, 402 U.S. at 401; 1 from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 2 720 (9th Cir. 1996). “If the evidence can reasonably support either 3 affirming or reversing,” the reviewing court “may not substitute its 4 judgment” for that of the Commissioner. Id. at 720-721. 5 6 III. DISCUSSION 7 A. 8 Plaintiff contends that the ALJ improperly rejected the work- 9 Plaintiff’s Treating Physician’s Opinion related limitations assessed by her treating physician. 10 The Commissioner is directed to weigh medical opinions based in 11 part on their source, specifically, whether proffered by treating, 12 examining, or non-examining professionals. Lester v. Chater, 81 F.3d 13 821, 830-31 (9th Cir. 1995). Generally, more weight is given to the 14 opinion of a treating professional, who has a greater opportunity to 15 know and observe the patient as an individual, than the opinion of a 16 non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 17 (9th Cir. 1996). 18 The Commissioner must also consider whether a medical opinion is 19 supported by clinical findings and is contradicted by other medical 20 evidence of record. The Commissioner may reject the uncontradicted 21 opinion of a treating or examining medical professional only for “clear 22 and convincing” reasons supported by substantial evidence in the record. 23 See Lester, 81 F.3d at 831. A contradicted opinion of a treating or 24 examining 25 legitimate” reasons supported by substantial evidence. Lester, 81 F.3d 26 at 830. If a treating professional’s opinion is contradicted by an 27 examining 28 independent clinical findings, the Commissioner may resolve the conflict professional professional’s may be rejected opinion, which 4 only is for supported “specific by and different 1 by relying on the latter. See Andrews v. Shalala, 53 F.3d 1035, 1041 2 (9th Cir. 1995); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 3 2007) 4 examining 5 findings). (ALJ may reject physician opinion whose of opinion treating rests physician of in independent favor of clinical 6 Dr. Urbina 7 Marvin Urbina, M.D. began treating Plaintiff in May 2006. (AR at 8 427). He diagnosed Plaintiff with fibromyalgia, depression, migraine 9 headaches, and a history of carpal tunnel syndrome. (AR at 427). In 10 support of his diagnoses, Dr. Urbina cited Plaintiff’s chronic fatigue, 11 myalgias, depression, multiple joint pain, and x-rays of Plaintiff’s 12 bilateral hands, wrists, and feet. (AR at 427-28). Dr. Urbina also noted 13 that Plaintiff suffered from dyslipidemia, a 14 menopause with hormone replacement, migrating pain, and tingling and 15 numbness in the bilateral upper extremities. (AR at 427-28). Dr. Urbina 16 prescribed a number of medications, including Cymbalta (antidepressant), 17 Naproxen (nonsteroidal anti-inflammatory drug), Darvocet (opioid), Soma 18 (muscle relaxant), Neurontin (anti-seizure/pain medication), Fluoxetine 19 (antidepressant), and Celexa (antidepressant). (AR at 183, 365, 431). 20 Dr. Urbina considered Plaintiff’s prognosis to be “guarded.” (AR at 21 427). total hysterectomy, 22 In October 2006, Dr. Urbina gave an assessment of Plaintiff’s 23 ability to perform work-related activities in a “Multiple Impairment 24 Questionnaire.” (AR at 427-34). Dr. Urbina opined that Plaintiff could 25 sit four hours in an eight-hour workday and stand or walk four hours in 26 an eight-hour workday. (AR at 429). Dr. Urbina assessed Plaintiff with 27 “moderate” restrictions in the following: using fingers or hands for 28 fine manipulations; using arms for reaching; and grasping, turning, and 5 1 twisting 2 Plaintiff’s pain, fatigue or other symptoms would interfere with her 3 attention and concentration on a frequent basis, Plaintiff was capable 4 of only “low stress” work, Plaintiff would need to take unscheduled 5 breaks lasting 30 to 45 minutes every two to three hours, and Plaintiff 6 would be absent from work about one time each month due to her 7 impairments or treatment. (AR at 432-33). Finally, Dr. Urbina found that 8 when Plaintiff is experiencing acute flares of fibromyagia, she is 9 limited to lifting and carrying no more than five pounds occasionally. 10 objects. (AR at 430-31). Dr. Urbina further found that (AR at 430). 11 The ALJ rejected Dr. Urbina’s opinion as to Plaintiff’s residual 12 functional capacity, but failed to state adequate reasons for doing so. 13 (AR at 23-24). First, the ALJ criticized Dr. Urbina’s opinion because he 14 reported that Plaintiff had a history of 15 syndrome. (AR at 23). The ALJ notes that an electromyogram and nerve 16 conduction 17 electrodiagnostic evidence of carpal tunnel syndrome in only the right 18 upper extremity. (AR at 321, 427). However, Dr. Urbina’s records contain 19 findings that are consistent with bilateral carpal tunnel syndrome. Dr. 20 Urbina reported that Plaintiff experienced pain in her bilateral wrists 21 and hands and tingling in both upper extremities. (AR at 361, 363, 425, 22 428). Dr. Urbina also reported that his diagnosis was supported by x- 23 rays of Plaintiff’s bilateral hands and wrists. (AR at 428). Thus, to 24 the extent the ALJ questioned the objective basis for Dr. Urbina’s 25 opinion, he should have inquired further. See, e.g., Smolen, 80 F.3d at 26 1288. study conducted in October bilateral 2004 carpal tunnel showed there was 27 Next, the ALJ rejected Dr. Urbina’s opinion because Plaintiff 28 experienced flares of fibromyalgia only on an intermittent basis. (AR at 6 1 24). The medical record showed that Plaintiff experienced acute flares 2 of fibromyalgia in September 2006, February 2007, July 2007, December 3 2007, and January 2008. (AR at 24). The ALJ assumed that these flares 4 resolved quickly. (AR at 24). However, the infrequency of Plaintiff’s 5 acute episodes of fibromyalgia is not a legitimate reason for rejecting 6 Dr. Urbina’s opinion. The essential question when dealing with a chronic 7 condition such as fibromyalgia is whether the claimant can perform work 8 tasks on a sustained basis. Here, Dr. Urbina appears to have assessed 9 two tiers of work-related restrictions. First, Dr. Urbina assessed 10 restrictions relating to Plaintiff’s general ability to perform work- 11 related tasks. Dr. Urbina found that Plaintiff is able to sit four hours 12 in an eight-hour workday and stand or walk four hours in an eight-hour 13 workday, has moderate restrictions in the use of her fingers, hands, and 14 arms, has frequent problems with attention and concentration, is limited 15 to “low stress” work, needs to take unscheduled breaks every two to 16 three hours, and is likely to be absent from work about one time each 17 month. (AR at 429-33). Second, Dr. Urbina appears to have assessed 18 additional 19 suffering from acute flares of fibromyalgia. (AR at 430). Dr. Urbina 20 opined that the acute flares would result in a lifting and carrying 21 restriction to no more than five pounds occasionally. (AR at 430). While 22 the infrequency of Plaintiff’s acute flares of fibromyalgia undermines 23 these very restrictive lifting and carrying limitations, it not relevant 24 to the many other general work limitations identified by Dr. Urbina. restrictions on Plaintiff during periods when she is 25 The ALJ further criticized Dr. Urbina’s opinion because Plaintiff 26 did not receive ongoing treatment with a rheumatologist. (AR at 24). In 27 September 2006, after her initial diagnosis of fibromyalgia, Plaintiff 28 was referred for an evaluation with a rheumatologist, Susan A. Buhay, 7 1 M.D. (AR at 402). See Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2 2004) (explaining that rheumatology is the relevant specialty for 3 fibromyalgia). Dr. Buhay found that Plaintiff displayed signs and 4 symptoms consistent with fibromyalgia, including tender points over the 5 trunk and extremities. (AR at 402). Dr. Buhay requested authorization 6 for Plaintiff to return for a follow up visit, but there is no 7 indication that such authorization was ever granted or that Plaintiff 8 ever saw Dr. Buhay again. Generally, the regulations provide that 9 greater weight be given to opinions of specialists. See 20 C.F.R. § 10 404.1527(d)(5) (more weight is generally given to the opinion of a 11 specialist about medical issues related to his or her area of specialty 12 than to the opinion of a source who is not a specialist). However, the 13 lack of ongoing treatment from a specialist is not a basis for rejecting 14 Dr. Urbina’s treating source opinion. See 20 C.F.R. § 404.1513(a) 15 (generally more weight is given to the opinion of a treating source). 16 And, although Plaintiff did not continue seeing Dr. Buhay, she was 17 referred to a pain management specialist who treated her symptoms from 18 fibromyalgia. (AR at 456-64). 19 Next, the ALJ faulted Dr. Urbina’s opinion as unsupported by the 20 objective medical evidence, as Plaintiff’s 21 examination was relatively normal. (AR at 24). In general, an “ALJ need 22 not accept the opinion of any physician, including a treating physician, 23 if that opinion is brief, conclusory, and inadequately supported by 24 clinical findings.” See Batson v. Commissioner of Social Security 25 Administration, 359 F.3d 1190, 1195 (9th Cir. 2004) (noting that “an ALJ 26 may discredit treating physicians’ opinions that are conclusory, brief, 27 and unsupported by the record as a whole, ... or by objective medical 28 findings”); see also Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 8 comprehensive physical 1 2001). 2 associated with unique evidentiary issues. See, e.g., Rogers v. Comm'r, 3 Soc. Sec. Admin., 486 F.3d 234, 245 (6th Cir. 2007). There are no 4 laboratory tests to confirm the presence or severity of fibromyalgia. 5 Benecke, 379 F.3d at 590; Rollins v. Massanari, 261 F.3d 853, 855 (9th 6 Cir. 2001); Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). In such 7 cases, a treating doctor’s diagnosis may be based purely on a patient’s 8 reports of pain and other symptoms. Benecke, 379 F.3d at 590; see also 9 Sarchet, 78 F.3d 305, 306 (7th Cir. 1996) (noting that fibromyalgia 10 symptoms are “entirely subjective”). Given the difficult nature of 11 diagnosing fibromyalgia, it was improper for the ALJ to reject Dr. 12 Urbina’s opinion based on a lack of objective medical evidence. Benecke, 13 379 F.3d at 594; see also Green-Younger v. Barnhart, 335 F.3d 99, 108 14 (2d 15 ‘objective’ evidence for a disease [i.e., fibromyalgia] that eludes such 16 measurement”). 17 However, Cir. 2003) Finally, the diagnosis (reversing the ALJ cited and where the treatment the “ALJ opinions of fibromyalgia effectively of the other is required examining 18 physicians, Ibrahim Yashruti, M.D. and Kambiz Hannani, M.D., to support 19 the rejection of Dr. Urbina’s opinion. (AR at 23-24, 334-37, 438-48). 20 Dr. Hannani conducted a complete orthopedic consultation of Plaintiff in 21 February 2007. (AR at 334-37). Other than decreased flexion in the 22 thoracolumbar range of motion, tenderness in the lumbosacral junction, 23 and poor grip strength, all other findings on examination were normal. 24 (AR at 335-37). He diagnosed Plaintiff with low back and cervical 25 dysfunction. (AR at 337). Although Dr. Hannani noted multiple non- 26 physiological findings (including pain and tenderness in a generalized 27 fashion, 28 generalized fashion, and give away weakness in the bilateral upper and decreased sensation in the 9 right lower extremity in a 1 lower extremities), he concluded that Plaintiff was able to stand and 2 walk six hours in an eight-hour workday, and lift and carry 10 pounds 3 frequently and 20 pounds occasionally. (AR at 337). 4 Dr. Yashruti conducted an orthopaedic evaluation of Plaintiff in 5 August 2008. (AR at 438-42). Dr. Yashruti reported, “[o]bjectively, 6 there are no abnormal findings.” (AR at 442). Plaintiff’s neurologic 7 examination was unremarkable, her x-rays revealed some degenerative 8 changes of the thoracic spine, slight osteoporosis in the wrists and 9 hands, and a mild degree of degenerative changes of the mid-foot. (AR at 10 442). Although Plaintiff had complained of total body pain and appeared 11 noticeably depressed, Dr. Yashruti concluded that Plaintiff was able to 12 sit six hours in an eight-hour workday, stand and walk six hours in an 13 eight-hour workday, and lift and carry 20 pounds frequently and 50 14 pounds occasionally. (AR at 442-44). 15 The opinions of the examining doctors did not constitute a proper 16 basis for rejecting Dr. Urbina’s treating source opinion. First, neither 17 examining 18 fibromyalgia, a medical condition that the ALJ deemed to be severe. (AR 19 at 18, 23-24). Second, both doctors emphasized the absence of objective 20 evidence to support Plaintiff’s subjective complaints. (AR at 23-24). As 21 noted above, however, there are no objective signs or tests to confirm 22 the severity of a claimant’s fibromyalgia. See Benecke, 379 F.3d at 594 23 (finding that the ALJ erred by requiring “objective” evidence of 24 fibromyalgia because the disease “eludes such measurement”). doctor recognized that Plaintiff was suffering from 25 Accordingly, the ALJ erred by rejecting Dr. Urbina’s opinion 26 without providing adequate reasons for doing so. The decision to deny 27 benefits is not supported by substantial evidence. 28 10 1 IV. Conclusion 2 In general, the choice whether to reverse and remand for further 3 administrative proceedings, or to reverse and simply award benefits, is 4 within the discretion of the court. See Harman v. Apfel, 211 F.3d 1172, 5 1178 (9th Cir. 2000). The Ninth Circuit has observed that “the proper 6 course, except in rare circumstances, is to remand to the agency for 7 additional investigation or explanation.” Moisa v. Barnhart, 367 F.3d 8 882, 886 (9th Cir. 2004) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) 9 (per curiam)). Remand for further administrative proceedings is 10 appropriate “if enhancement of the record would be useful.” Benecke, 379 11 F.3d at 593; see Harman, 211 F.3d at 1179 (explaining that “the decision 12 whether to remand for further proceedings turns upon the likely utility 13 of such proceedings”). Remand for the payment of benefits is appropriate 14 where no useful purpose would be served by further administrative 15 proceedings, and the record has been fully developed, Lester, 81 F.3d at 16 834; or where remand would unnecessarily delay the receipt of benefits, 17 Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). 18 Here, remand for further administrative proceedings is warranted, 19 as the medical evidence was incomplete. Webb v. Barnhart, 433 F.3d 683, 20 687 (9th Cir. 2006) (“The ALJ’s duty to supplement a claimant’s record 21 is triggered by ambiguous evidence, the ALJ’s own finding that the 22 record is inadequate or the ALJ’s reliance on an expert’s conclusion 23 that the evidence is ambiguous.”) (citing Tonapetyan, 242 F.3d at 1150). 24 As discussed above, Dr. Urbina found that when Plaintiff experiences 25 acute flares of fibromyalgia, she is limited to lifting and carrying no 26 more than five pounds. (AR at 430). Dr. Urbina did not, however, assess 27 Plaintiff’s general ability to lift and carry. On remand, the ALJ should 28 seek clarification of Dr. Urbina’s 11 opinion regarding Plaintiff’s 1 residual functional capacity. If such clarification cannot be obtained, 2 or if otherwise helpful to the proper determination of Plaintiff’s 3 disability status, a new consultative examination should be ordered.2 4 Accordingly, the decision of the Commissioner is reversed; and this 5 action is remanded 6 for further proceedings consistent with this Memorandum Opinion. 7 8 DATED: 9 January 26, 2011 ______________________________ MARC L. GOLDMAN United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Because the record is not sufficiently developed to support a determination of disability without further proceedings, the Court will not decide whether the remaining issues raised by Plaintiff would independently require reversal. See Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003) (where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate). The Court recommends, however, that the ALJ consider all of Plaintiff’s arguments when determining the merits of her case on remand. 12
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