Jaime Reynoso v. Michael J. Astrue, No. 2:2010cv04604 - Document 23 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is REVERSED and REMANDED for further proceedings in accordance with this Memorandum Opinion and Order and with law. LET JUDGMENT BE ENTERED ACCORDINGLY. (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 JAIME REYNOSO, 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, 15 Commissioner of Social Security, Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-04604-JEM MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY 17 PROCEEDINGS 18 19 On June 25, 2010, Jaime Reynoso ( Plaintiff or Claimant ) filed a Complaint seeking 20 review of the decision by the Commissioner of the Social Security Administration 21 ( Commissioner ) denying Plaintiff s Social Security disability and disability insurance 22 benefits. On February 3, 2011, the Commissioner filed an Answer to the Complaint. On 23 June 9, 2011, the parties filed a Joint Stipulation ( JS ) setting forth their positions and the 24 issues in dispute. 25 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the 26 undersigned Magistrate Judge. After reviewing the pleadings, transcripts, and administrative 27 record ( AR ), the Court concludes that the Commissioner s decision should be reversed and 28 1 remanded for further proceedings in accordance with this Memorandum Opinion and Order 2 and with law. 3 BACKGROUND 4 Plaintiff is a 38 year old male who filed an application for disability and disability 5 insurance benefits and supplemental security income benefits on April 6, 2006, alleging 6 disability beginning December 3, 2003. (AR 14, 42.) Plaintiff has not engaged in substantial 7 gainful activity since that date. (AR 16.) 8 Plaintiff s claim was denied initially and on reconsideration. (AR 14.) Plaintiff filed a 9 timely request for a hearing, which was held on February 20, 2008, in Orange, California, 10 before Administrative Law Judge ( ALJ ) Charles E. Stevenson. (AR 22.) Plaintiff appeared 11 and testified at the hearing. (AR 14.) Medical expert Joseph Jensen, M.D., and vocational 12 expert ( VE ) David Rinehart also testified. (AR 14.) Plaintiff was represented by counsel. 13 (AR 14.) 14 The ALJ issued an unfavorable decision on April 25, 2008. (AR 14-22.) The Appeals 15 Council denied Plaintiff s request for review on April 22, 2010. (AR 1-3.) DISPUTED ISSUES 16 17 As reflected in the Joint Stipulation, Plaintiff raises two issues as grounds for reversal 18 and remand: 19 1. disability. 20 21 22 23 24 Whether the ALJ properly considered the presence of a closed period of 2. Whether the ALJ properly considered the opinions of the neutral examining physician. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine whether 25 the ALJ s findings are supported by substantial evidence and free of legal error. Smolen v. 26 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 27 28 2 1 (9th Cir. 1991) (ALJ s disability determination must be supported by substantial evidence and 2 based on the proper legal standards). 3 Substantial evidence means more than a mere scintilla, but less than a 4 preponderance. Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson 5 v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is such relevant evidence as a 6 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 U.S. 7 at 401 (internal quotation marks and citation omitted). 8 This Court must review the record as a whole and consider adverse as well as 9 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 10 Where evidence is susceptible to more than one rational interpretation, the ALJ s decision 11 must be upheld. Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 12 1999). However, a reviewing court must consider the entire record as a whole and may not 13 affirm simply by isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 14 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 15 495 F.3d 625, 630 (9th Cir. 2007). 16 17 THE SEQUENTIAL EVALUATION The Social Security Act defines disability as the inability to engage in any substantial 18 gainful activity by reason of any medically determinable physical or mental impairment which 19 can be expected to result in death or . . . can be expected to last for a continuous period of 20 not less than 12 months. 42 U.S.C. §§ 423(d) (1)(A), 1382c(a)(3)(A). The Commissioner 21 has established a five-step sequential process to determine whether a claimant is disabled. 22 20 C.F.R. §§ 404.1520, 416.920. 23 The first step is to determine whether the claimant is presently engaging in substantial 24 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is 25 engaging in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 26 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the claimant has a 27 severe impairment or combination of impairments. Parra, 481 F.3d at 746. An impairment is 28 3 1 not severe if it does not significantly limit the claimant s ability to work. Smolen, 80 F.3d at 2 1290. Third, the ALJ must determine whether the impairment is listed, or equivalent to an 3 impairment listed, in Appendix I of the regulations. Id. If the impediment meets or equals 4 one of the listed impairments, the claimant is presumptively disabled. Bowen v. Yuckert, 482 5 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the claimant 6 from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). 7 Before making the step four determination, the ALJ first must determine the 8 claimant s residual functional capacity ( RFC ). 20 C.F.R. § 416.920(e). Residual functional 9 capacity (RFC) is what one can still do despite [his or her] limitations and represents an 10 assessment based on all the relevant evidence. 20 C.F.R. §§ 404.1545(a)(1), 11 416.945(a)(1). The RFC must account for all of the claimant s impairments, including those 12 that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling ( SSR ) 13 96-8p. If the claimant cannot perform his or her past relevant work or has no past relevant 14 work, the ALJ proceeds to the fifth step and must determine whether the impairment 15 prevents the claimant from performing any other substantial gainful activity. Moore v. Apfel, 16 216 F.3d 864, 869 (9th Cir. 2000). 17 The claimant bears the burden of proving steps one through four, consistent with the 18 general rule that at all times the burden is on the claimant to establish his or her entitlement 19 to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the 20 claimant, the burden shifts to the Commissioner to show that the claimant may perform other 21 gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a 22 finding that a claimant is not disabled at step five, the Commissioner must provide evidence 23 demonstrating that other work exists in significant numbers in the national economy that the 24 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. § 25 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 26 entitled to benefits. Id. 27 28 4 THE ALJ DECISION 1 2 In this case, the ALJ determined at step one of the sequential process that Plaintiff 3 has not engaged in substantial gainful activity since December 3, 2003, the alleged onset 4 date. (AR 16.) 5 At step two, the ALJ found that Plaintiff has the following medically determinable 6 severe impairments: a two level lumbar fusion and bilateral carpal tunnel syndrome. (AR 7 16.) 8 At step three, the ALJ determined that Claimant does not have an impairment or 9 combination of impairments that meets or medically equals the listed impairments in 20 10 C.F.R. Pt. 404, Subpt. P, Appendix 1. (AR 16.) 11 The ALJ then found that Plaintiff had the RFC to perform light work with the following 12 limitations: 13 . . . lifting and carrying 20 pounds occasionally and 10 pounds frequently, 14 sitting for six hours, and standing/walking for six hours out of an eight 15 hour day except that the claimant needs a five minute in place change of 16 position break every hour. He can perform frequent, but constant use of 17 his hands, no forceful use of his hands, and no working on uneven terrain, 18 or climbing ladders, ropes and scaffolds. 19 (AR 16.) In determining Plaintiff s RFC, the ALJ made an adverse credibility finding (AR 18), 20 which is not challenged here. 21 At step four, the ALJ found that Claimant is unable to perform his past relevant work 22 as a construction laborer. (AR 21.) Nonetheless, the ALJ determined that Plaintiff can 23 perform other jobs that exist in the national economy in significant numbers, including small 24 products assembler, electronics assembler, information clerk, and cashier. (AR 20-21.) 25 Hence, the ALJ concluded that Plaintiff was not disabled within the meaning of the 26 Social Security Act. (AR 22.) 27 28 5 DISCUSSION 1 2 I. THE ALJ FAILED TO CONSIDER A CLOSED PERIOD OF DISABILITY 3 Plaintiff suffered a job related injury to his back in 2003. (AR 18.) He underwent a 4 two level lumbosacral fusion on November 5, 2005. (AR 18, 378-82.) The ALJ accepted the 5 opinion of medical expert Dr. Jensen that none of Plaintiff s impairments met a listing. (AR 6 16.) He also accepted Dr. Jensen s light work RFC. (AR 19.) 7 Plaintiff, however, challenges the ALJ s nondisability decision for the period of 8 December 3, 2003, to May 16, 2005, and November 1, 2005, to December 4, 2006. Plaintiff 9 contends that Dr. Jensen s testimony refers only to Claimant s condition as status post-level 10 two lumbosacral fusion (AR 33) and thus the ALJ nondisability decision is not supported by 11 substantial evidence for the period from 2003 to 2005 before the lumbosacral fusion surgery 12 or for the post-surgical period from November 1, 2005, to December 4, 2006. 13 Plaintiff is correct. The ALJ decision does not adequately address Plaintiff s disability 14 status prior to his 2005 surgery. Agreed medical examiner ( AME ) Dr. Jackson and treating 15 physician and surgeon Dr. Simon Lavi regarded Plaintiff as temporarily totally disabled for 16 the period of December 3, 2003, to May 16, 2005, and November 1, 2005, to December 4, 17 2006. (AR 718, 672, 281, 285, 290, 294, 298, 302, 310.) These opinions may be evidence 18 that Claimant met the 12 month disability duration requirement. 20 C.F.R. 416.409 ( . . . your 19 impairment . . . must have lasted . . . for a continuous period of at least 12 months. We call 20 this the durational requirement ). 21 There is some conflicting medical testimony, but the ALJ decision does not give 22 specific, legitimate reasons for rejecting the workers compensation opinions of Dr. Jackson 23 and Dr. Lavi. Nor does it translate their workers compensation terminology into Social 24 Security terminology. Dr. Jensen only addressed Plaintiff s post-surgical condition. The 25 same is true of the ALJ decision. As a result, the ALJ decision is ambiguous, indeterminate 26 and insufficient to resolve Plaintiff s pre-surgical and post-surgical disability status and must 27 be reversed and remanded for further proceedings. 28 6 1 A. Relevant Law 2 In evaluating medical opinions, the case law and regulations distinguish among the 3 opinions of three types of physicians: (1) those who treat the claimant (treating physicians); 4 (2) those who examine but do not treat the claimant (examining physicians); and (3) those 5 who neither examine nor treat the claimant (non-examining, or consulting, physicians). See 6 20 C.F.R. §§ 404.1527, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 7 In general, an ALJ must accord special weight to a treating physician s opinion because a 8 treating physician is employed to cure and has a greater opportunity to know and observe 9 the patient as an individual. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) 10 (citation omitted). If a treating source s opinion on the issues of the nature and severity of a 11 claimant s impairments is well-supported by medically acceptable clinical and laboratory 12 diagnostic techniques, and is not inconsistent with other substantial evidence in the case 13 record, the ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). 14 Where a treating doctor s opinion is not contradicted by another doctor, it may be 15 rejected only for clear and convincing reasons. Lester, 81 F.3d at 830. However, if the 16 treating physician s opinion is contradicted by another doctor, such as an examining 17 physician, the ALJ may reject the treating physician s opinion by providing specific, legitimate 18 reasons, supported by substantial evidence in the record. Lester, 81 F.3d at 830-31; see 19 also Orn, 495 F.3d at 632; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Where a 20 treating physician's opinion is contradicted by an examining professional s opinion, the 21 Commissioner may resolve the conflict by relying on the examining physician s opinion if the 22 examining physician s opinion is supported by different, independent clinical findings. See 23 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Orn, 495 F.3d at 632. However, 24 [t]he opinion of a non-examining physician cannot by itself constitute substantial evidence 25 that justifies the rejection of the opinion of either an examining physician or a treating 26 physician ; such an opinion may serve as substantial evidence only when it is consistent with 27 28 7 1 and supported by other independent evidence in the record. Lester, 81 F.3d at 830-31; 2 Morgan, 169 F.3d at 600. 3 B. Analysis 4 In a lengthy report dated May 16, 2005, that the ALJ decision fails to discuss or even 5 mention, Dr. Jackson diagnosed degenerative disc disease of the lumber spine with a large 6 herniated disc causing severe spinal stenosis, annular disc disruption with lower extremity 7 radiculitis, and history of potential bilateral carpal tunnel syndrome (not the focus of the 8 examination). (AR 716.) This diagnosis was based on physical examination (AR 704-06), 9 and radiographic evidence of near complete sacralization of the L5 level, with moderate 10 degenerative disease and collapse of the L4-5 disc space . (AR 706.) Dr. Jackson s 11 diagnosis also was based on a thorough review of the medical records. (AR 706-16.) Dr. 12 Jackson opined that Plaintiff was temporarily totally disabled for the period of December 3, 13 2003, to May 16, 2005, plus an additional 12 to 18 months if he undergoes surgery. (AR 14 718.) Dr. Jackson further opined that Plaintiff was precluded from heavy work, and from 15 prolonged sitting, standing, walking, and weightbearing. (AR 718.) He also found that 16 Plaintiff had lost 50% of his pre-injury work capacity. (AR 719.) 17 Claimant underwent two level lumbosacral spinal surgery on November 5, 2005. (AR 18 18, 378-82.) In a report dated December 4, 2006, AME Jackson opined that Plaintiff should 19 be considered temporarily totally disabled from November 2005 to the date of the report. 20 (AR 671.) He also found that Plaintiff had lost 60% of his pre-work capacity. (AR 672.) 21 Again, Dr. Jackson imposed restrictions on prolonged sitting and weightbearing, and heavy 22 work. (AR 19, 672.) The ALJ decision acknowledges this report and Dr. Jackson s 23 prescribed limitations (AR 19) but provides no evaluation of Dr. Jackson s report or specific 24 reasons for rejecting it. In April, 2008, Dr. Jackson opined that Plaintiff had the same 25 functional limitations as previously assessed. (AR 761-62.) The ALJ does not mention this 26 evidence. 27 28 8 1 Plaintiff s physician and surgeon Dr. Simon Lavi provided diagnoses similar to 2 Dr. Jackson and also opined that Plaintiff was temporarily totally disabled both pre-surgically 3 and post-surgically through January 2006. (AR 281, 285, 290, 294, 298, 302 and 310.) The 4 ALJ acknowledges Dr. Lavi s findings (AR 18-19) but appears to cherrypick statements from 5 Dr. Lavi s reports that support a non-disability status, while failing to give much attention or 6 significance to Dr. Lavi s pre-surgical reports or to Plaintiff s 2005 surgery or its implications 7 for a closed period of disability. 8 There is conflicting medical testimony. Pre-surgically, Dr. Etemad was not as 9 restrictive as Dr. Jackson and Dr. Sophon found no functional limitations. (AR 354.) Post10 surgically, State reviewing physician Dr. Lizarras reviewed the medical evidence and opined 11 that Plaintiff could do light work. (AR 653-58.) Thus, the ALJ was required to provide 12 specific, legitimate reasons for rejecting the opinions of Dr. Jackson and Dr. Lavi. 13 The Commissioner asserts that, faced with conflicting medical opinions, the ALJ 14 retained medical expert Dr. Jensen to assist in the interpretation of the medical evidence. 15 (JS 12.) Dr. Jensen offered this opinion at the hearing: 16 ALJ: What are the medically determinable impairments? 17 ME: Yes, he is status post two level lumbosacral fusion. There s evidence 18 there s continued low back pain present. Those are no neurological 19 deficits. The AME indicated that there was no evidence of failure of 20 the fusion sight and he was questioning why there was __ be 21 increased pain. Secondly, there s bilateral evidence of carpal tunnel 22 syndrome. There s been no treatment for this. It doesn t appear that 23 there would be a meeting or equally in my opinion here. 24 (AR 33-34.) 25 As Plaintiff notes, Dr. Jensen s brief, somewhat conclusory opinion only addresses 26 Claimant s disability status as of the time of the hearing, post-surgically. Dr. Jensen does not 27 address the temporary totally disabled opinions of Dr. Jackson and Dr. Lavi, nor the RFC 28 9 1 assessments of Dr. Jackson or give reasons why his own RFC differs from Dr. Johnson s. 2 Dr. Jensen does not address Claimant s pre-surgical disability status or even seem aware of 3 the closed period issue. 4 The same is true of the ALJ decision. The ALJ simply does not address the issue. 5 The ALJ s only comment about a closed period of disability is that [a] brief period of 6 disability may have been appropriate to allow recovery from the claimant s back surgeries, 7 but not for a period of 12 continuous months. (AR 19.) This statement makes no reference 8 to possible pre-surgical impairment or to the opinion of Dr. Jackson that Plaintiff was 9 disabled from December 3, 2003 to November 5, 2005. The ALJ s assertion that Claimant 10 was not disabled for a period of 12 continuous months is not supported by substantial 11 evidence and is arguably contrary to the evidence of record. 12 Additionally, the only evidence cited in the ALJ decision for the step three finding of no 13 listed impairment is Dr. Jensen s opinion cited above. (AR 16.) Thus, the ALJ decision lacks 14 any evidence on whether there is a pre-surgical impairment lasting for 12 months. The ALJ 15 simply does not address the issue. 16 Finally, Dr. Jensen and Dr. Lizarras are non-treating, non-examining physicians who 17 did not rely on an independent examination or other evidence. They merely reviewed the 18 same evidence that Dr. Jackson did, and thus their opinions are not substantial evidence that 19 can be used to reject the opinions of Dr. Jackson. Andrews, 53 F.3d at 1041; Orn, 495 F.3d 20 at 632. The ALJ decision notes that Dr. Lavi s opinion is conclusory, which is true, but that 21 does not negate the extensive analysis presented by AME Jackson who reviewed and 22 incorporated into his own reports Dr. Lavi s findings and opinions of temporary total disability. 23 The ALJ cannot rely on the opinions of Dr. Jensen and Dr. Lizarras to reject the opinion of 24 Dr. Jackson, particularly here where Dr. Jensen, Dr. Lizarras and the ALJ do not provide any 25 specific, legitimate reasons for doing so. Dr. Jackson specifically rejects Dr. Etemad s 26 analysis (AR 711) and the ALJ never relied on Dr. Etemad or Dr. Sophon in any event. He 27 relied on Dr. Jensen and Dr. Lizarras. The implicit rejection of Dr. Jackson s opinion is not 28 supported by substantial evidence. 10 There is evidence in the record that may support a closed period of disability lasting 1 2 12 months. The ALJ decision fails to consider or discuss whether Claimant s pre-surgical 3 impairment would meet the 12 month Social Security durational requirement. The ALJ 4 decision must be reversed and remanded for further proceedings to address that issue. 5 II. THE ALJ DECISION FAILED TO TRANSLATE DR. JACKSON S WORKERS COMPENSATION OPINIONS 6 The Court cannot determine from the record whether Dr. Jackson s opinion would 7 establish disability for Social Security purposes. Terms of art used in workers compensation 8 proceedings are not equivalent to Social Security disability terminology. Desrosiers v. 9 Secretary of Health & Human Services, 846 F.2d 573, 756 (9th Cir. 1988); Macri v. Chater, 10 93 F.3d 530, 544 (9th Cir. 1996); Booth v. Barnhart, 181 F. Supp. 2d 1099, 1104 (C. D. Cal. 11 2002). Dr. Jackson and Dr. Lavi were rendering workers compensation opinions and had no 12 reason to use Social Security terminology. 13 The Commissioner correctly observes that disability is an issue reserved to himself. 14 20 C.F.R. § 404.1527(e)(1)( [a] statement by a medical source that you are . . . unable to 15 work does not mean that we will determine that you are disabled ). An ALJ, however, may 16 not ignore a physician s medical opinion from a workers compensation proceeding. Booth, 17 181 F. Supp. 2d at 1105. The ALJ must translate terms of art contained in workers 18 compensation medical reports and opinions into corresponding Social Security terminology in 19 order to assess that evidence for Social Security disability determinations. Id. at 1106. The 20 ALJ did not do so here. He did not translate Dr. Jackson s explicitly stated opinions and 21 functional limitations or offer any specific, legitimate reasons for rejecting them. 22 The ALJ decision dismisses the temporary total disability opinions of Dr. Jackson and 23 Dr. Lavi with the following statement: This does not mean total disability as the Claimant is 24 not institutionalized or otherwise incapacitated from normal activity. (AR 19.) The ALJ 25 provides no explanation or authority for his apparent belief that institutionalization is 26 necessary to be disabled under Social Security or workers compensation law. The comment 27 about normal activity is ambiguous and undefined, and not a legal standard under Social 28 11 1 Security disability law. Dr. Jackson plainly opined that Claimant was precluded from 2 specified work activities. One does not need to be utterly incapacitated to be disabled for 3 Social Security purposes. McElroy v. Astrue, 237 Fed. Appx. 167, 169 (9th Cir. 2007). 4 Most importantly, the ALJ s statement is not a translation of Dr. Jackson s temporary total 5 disability opinion or of the functional limitations he prescribed. 6 This case must be remanded for further proceedings to address Plaintiff s contention 7 of a closed period of disability which requires a proper translation of the workers 8 compensation opinions and findings of, and limitations prescribed by, Dr. Jackson and Dr. 9 Lavi. ORDER 10 11 IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is 12 REVERSED and REMANDED for further proceedings in accordance with this Memorandum 13 Opinion and Order and with law. 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 DATED: June 27, 2011 17 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 12

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