Chalee Reid v. Michael J. Astrue, No. 2:2010cv04820 - Document 16 (C.D. Cal. 2011)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Marc L. Goldman. Accordingly, this action is remanded for further proceedings consistent with this Memorandum Opinion. (wr)
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Chalee Reid v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 10 11 12 CHALEE REID, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 19 Plaintiff Chalee Reid ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-4820-MLG MEMORANDUM OPINION AND ORDER (“Plaintiff”) seeks review of the 20 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 reversed, 23 and this action should be remanded for further proceedings. 24 25 I. Factual and Procedural Background 26 Plaintiff was born on January 19, 1955. (Administrative Record 27 (“AR”) at 121). She has relevant work experience as an insurance 28 adjuster and office clerk. (AR at 35-36). Dockets.Justia.com 1 Plaintiff filed an application for DIB on January 23, 2007, 2 alleging that she has been disabled since October 2, 2005, due to 3 chronic 4 extreme fatigue, and radiating muscle pain. (AR at 132). The Social 5 Security Administration denied Plaintiff’s application initially and on 6 reconsideration. (AR at 30, 76-79, 83-88). migraine headaches, fibromyalgia, back and neck injuries, 7 An administrative hearing was held before Administrative Law Judge 8 Mary L. Everstine (“the ALJ”) on April 29, 2009. (AR at 52-73). 9 Plaintiff, who was represented by counsel, testified at the hearing. (AR 10 at 55-67). A vocational expert also testified at the hearing. (AR at 66- 11 72). The ALJ issued a decision on November 4, 2008, denying Plaintiff’s 12 application. (AR at 30-36). The ALJ found that Plaintiff: (1) has not 13 engaged in substantial gainful activity since her alleged onset date of 14 disability through her date last insured of September 30, 2008, (step 15 1); (2) suffers from the severe impairments of fibromyalgia and migraine 16 headaches (step 2); (3) does not have any impairments that meet or equal 17 the criteria of a listed impairment (step 3); (4) has a “prophylactic” 18 residual functional capacity (“RFC”) to perform light work, limited by 19 a sit/stand option and an ability to lift and carry no more than five 20 pounds frequently and ten pounds occasionally; and (5) is able to 21 perform her past relevant work as an insurance adjuster and office clerk 22 (step 4). (AR at 32-33, 35-36). The Appeals Council denied review on May 23 12, 2010. (AR at 1-3). 24 Plaintiff commenced this action for judicial review on June 29, 25 2010. The parties filed a joint statement of disputed claims on December 26 16, 27 consideration to 28 subjective symptom testimony. Plaintiff seeks remand for payment of 2010. Plaintiff contends that the ALJ failed to give proper the opinion of her treating physician and to her 2 1 benefits or, in the alternative, remand for further administrative 2 proceedings. (Joint Stipulation at 22). The Commissioner requests that 3 the ALJ’s decision be affirmed. (Joint Stipulation at 23). 4 5 II. 6 Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 7 Commissioner’s decision to deny benefits. The Commissioner’s or ALJ’s 8 findings and decision should be upheld if they are free from legal error 9 and are supported by substantial evidence based on the record as a 10 whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 11 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 12 evidence means such evidence as a reasonable person might accept as 13 adequate 14 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more 15 than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d 16 at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 17 2006)). To determine whether substantial evidence supports a finding, 18 the reviewing court “must review the administrative record as a whole, 19 weighing both the evidence that supports and the evidence that detracts 20 from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 21 720 (9th Cir. 1996). “If the evidence can reasonably support either 22 affirming or reversing,” the reviewing court “may not substitute its 23 judgment” for that of the Commissioner. Id. at 720-721. to support a conclusion. Richardson, 402 U.S. at 401; 24 25 III. DISCUSSION 26 A. Plaintiff’s Treating Physician’s Opinion 27 Plaintiff contends that the ALJ improperly rejected the opinion of 28 her treating physician, Logan Bundy, M.D., who opined that Plaintiff was 3 1 permanently disabled and unable to perform full-time, competitive work. 2 (AR at 227, 269). 3 The Commissioner is directed to weigh medical opinions based in 4 part on their source, specifically, whether proffered by treating, 5 examining, or non-examining professionals. Lester v. Chater, 81 F.3d 6 821, 830-31 (9th Cir. 1995). Generally, more weight is given to the 7 opinion of a treating professional, who has a greater opportunity to 8 know and observe the patient as an individual, than the opinion of a 9 non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 10 (9th Cir. 1996). 11 The Commissioner must also consider whether a medical opinion is 12 supported by clinical findings and is contradicted by other medical 13 evidence of record. The Commissioner may reject the uncontradicted 14 opinion of a treating or examining medical professional only for “clear 15 and convincing” reasons supported by substantial evidence in the record. 16 See Lester, 81 F.3d at 831. A contradicted opinion of a treating or 17 examining 18 legitimate” reasons supported by substantial evidence. Lester, 81 F.3d 19 at 830. If a treating professional’s opinion is contradicted by an 20 examining 21 independent clinical findings, the Commissioner may resolve the conflict 22 by relying on the latter. See Andrews v. Shalala, 53 F.3d 1035, 1041 23 (9th Cir. 1995); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 24 2007) 25 examining 26 findings). (ALJ professional professional’s may reject physician may be rejected opinion, opinion whose which of opinion only is “specific supported treating rests for physician of by in independent and different favor of clinical 27 Dr. Bundy began treating Plaintiff in October 1999. (AR at 227). 28 The record contains Dr. Bundy’s treatment notes from November 2004 4 1 through November 2008. (AR at 235-57, 271-73). Plaintiff reported a 2 history of migraine headaches, diffuse joint pain, muscle discomfort, 3 fatigue, and insomnia. (AR at 235-57, 271-73, 288). Plaintiff’s x-rays 4 and lab tests were normal. (AR at 227, 229, 266). Dr. Bundy diagnosed 5 Plaintiff with fibromyalgia, migraine headaches, and chronic fatigue. 6 (AR at 228, 265). Dr. Bundy prescribed Prozac (an antidepressant), 7 Midrin (a non-narcotic analgesic with sedative), Tylenol PM (pain 8 reliever with sleep aid), and ranitidine (acid reducer). (AR at 227-28, 9 265). In 2007, Dr. Bundy reported that Plaintiff’s prognosis was poor. 10 (AR at 227). He concluded that Plaintiff was “permanently disabled” and 11 unable to perform full-time, competitive work. (AR at 227). 12 Dr. Bundy also completed a “Multiple Impairment Questionnaire” and 13 a “Fibromyalgia Impairment Questionnaire.” (AR at 228-34, 265-70). He 14 indicated 15 eight-hour workday; stand or walk no more than one hour in an eight-hour 16 workday; lift no more than 20 pounds occasionally; and carry no more 17 than five pounds occasionally. (AR at 230-31, 268-70). Dr. Bundy found 18 that Plaintiff was precluded or had “marked restrictions” in the 19 following: kneeling; bending; stooping; pushing; pulling; using fingers 20 or hands for fine manipulations; using arms for reaching; and grasping, 21 turning, and twisting objects. (AR at 231-32, 269-70). Dr. Bundy based 22 these limitations on Plaintiff’s symptoms from her migraine headaches 23 and fibromyalgia. (AR at 269). that Plaintiff could sit no more than one hour in an 24 In April 2009, Dr. Bundy confirmed his earlier assessments of 25 Plaintiff’s functional limitations, and reiterated his conclusion that 26 Plaintiff was unable to perform full-time, competitive work. (AR at 27 264). 28 The ALJ rejected Dr. Bundy’s opinion as to Plaintiff’s residual 5 1 functional capacity and disability, but failed to state adequate reasons 2 for doing so. (AR at 35). First, the ALJ found that the conservative 3 treatment prescribed by Dr. Bundy was inconsistent with the work 4 limitations assessed by him. (AR at 35). It is recognized, however, that 5 the cause of fibromyalgia is unknown and there is no cure. Benecke v. 6 Barnhart, 379 F.3d at 590; Rollins v. Massanari, 261 F.3d 853, 855 (9th 7 Cir. 2001) (citing Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)). 8 Here, Dr. Bundy provided Plaintiff with medication, a widely-accepted 9 treatment for fibromyalgia. The ALJ does not identify any sort of 10 alternative treatment that could have been prescribed. Given the nature 11 of 12 conservative treatment was not a specific and legitimate reason for 13 rejecting Dr. Bundy’s opinion. See, e.g., Lapeirre-Gutt v. Astrue, 382 14 Fed. Appx. 662, 2010 WL 2317918, *1 (9th Cir. June 9, 2010) (“A claimant 15 cannot be discredited for failing to pursue non-conservative treatment 16 options where none exist.”). fibromyalgia and the absence of any cure for the disease, 17 Next, the ALJ found that Dr. Bundy’s opinion was unsupported by the 18 objective evidence and was most likely based upon Plaintiff’s subjective 19 complaints. (AR at 34-35). In general, an “ALJ need not accept the 20 opinion of any physician, including a treating physician, if that 21 opinion is brief, conclusory, and inadequately supported by clinical 22 findings.” See Batson v. Commissioner of Social Security Administration, 23 359 F.3d 1190, 1195 (9th Cir. 2004) (noting that “an ALJ may discredit 24 treating 25 unsupported by the record as a whole, ... or by objective medical 26 findings”); see also Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 27 2001). 28 associated with unique evidentiary issues. See, e.g., Rogers v. Comm'r, physicians’ However, the opinions diagnosis that and 6 are conclusory, treatment of brief, fibromyalgia and is 1 Soc. Sec. Admin., 486 F.3d 234, 245 (6th Cir. 2007). In such cases, a 2 treating doctor’s diagnosis may be based purely on a patient’s reports 3 of pain and other symptoms. Benecke, 379 F.3d at 590; see also Sarchet, 4 78 F.3d 305, 306 (7th Cir. 1996) (noting that fibromyalgia symptoms are 5 “entirely subjective”). There are no laboratory tests to confirm the 6 presence or severity of fibromyalgia. Id.; Rollins, 261 F.3d at 855; 7 Sarchet, 78 F.3d at 306. Therefore, it was improper for the ALJ to 8 reject 9 evidence. Benecke, 379 F.3d at 594; see also Green-Younger v. Barnhart, 10 335 F.3d 99, 108 (2d Cir. 2003) (reversing where the “ALJ effectively 11 required ‘objective’ evidence for a disease [i.e., fibromyalgia] that 12 eludes such measurement.”). Dr. Bundy’s opinion based on a lack of objective medical 13 The ALJ further discounted Dr. Bundy’s opinion because he was a 14 family practitioner and not a specialist. (AR at 35); see Benecke, 379 15 F.3d at 594 (explaining that rheumatology is the relevant specialty for 16 fibromyalgia). This was not a legitimate reason for rejecting his 17 opinion either. Although the regulations generally provide that greater 18 weight be given to opinions of specialists, they do not require that a 19 physician be board-certified to provide medical evidence. See 20 C.F.R. 20 § 404.1513(a) (generally more weight is given to the opinion of a 21 treating source); see also 20 C.F.R. § 404.1527(d)(5) (more weight is 22 generally given to the opinion of a specialist about medical issues 23 related to his or her area of specialty than to the opinion of a source 24 who is not a specialist). Because Dr. Bundy was a treating physician, 25 his opinion was entitled to more weight than other sources, irrespective 26 of whether he was specialist in fibromyalgia. See Lester, 81 F.3d at 833 27 (treating physician’s opinion may not be discredited on the ground that 28 he is not a board-certified psychiatrist). 7 1 The ALJ also relied on the opinion of the one-time examining 2 physician, Thomas Hascall, M.D., to support the rejection of Dr. Bundy’s 3 opinion. (AR at 34, 213-16). Dr. Hascall conducted a comprehensive 4 internal medicine evaluation of Plaintiff in April 2007. (AR at 213-16). 5 He diagnosed Plaintiff with migraine headaches and fibromyalgia, noting 6 that Plaintiff had 18 out of 18 tender points. (AR at 34, 216). 7 Examination 8 strength, and grip strength. (AR at 216). Dr. Hascall found no muscle 9 spasms, crepitus, joint effusion, joint deformity, cyanosis, clubbing or 10 edema in the extremities. (AR at 216). Based on these findings, Dr. 11 Hascall concluded that Plaintiff was able to sit without restriction, 12 stand and walk without restriction, and lift and carry 25 pounds 13 frequently and 50 pounds occasionally. (AR at 34, 216-17). However, Dr. 14 Hascall qualified his opinion by noting that “the true extent of 15 [Plaintiff’s] functional impairment is likely not reflected by this one 16 time examination,” as she suffers from fibromyalgia. (AR at 217). Dr. 17 Hascall recommended that “[a]n updated note from [Plaintiff’s] primary 18 care provider stating what he or she feels is her impairment based on 19 her fibromyalgia” be obtained in order determine her final functional 20 assessment. (AR at 217). of Plaintiff revealed good muscle tone, bulk, motor 21 The ALJ credited Dr. Hascall’s opinion based on the “supportability 22 with medical signs and laboratory findings; consistency with the record; 23 and area of specialization.” (AR at 35, 213-17). These reasons did not 24 constitute a proper basis for rejecting Dr. Bundy’s treating physician 25 opinion. The ALJ’s first two reasons (the supportability of medical 26 signs and laboratory findings and consistency with the record) were not 27 legitimate, because, as noted above, there are no objective signs or 28 tests to confirm the severity of a claimant’s fibromyalgia. See Benecke, 8 1 379 F.3d at 590; Green-Younger, 335 F.3d at 108; see also Sarchet, 78 2 F.3d at 306. In other words, the absence of objective medical evidence 3 does not establish that Plaintiff is not impaired by her fibromyalgia. 4 The ALJ’s third reason for crediting Dr. Hascall’s opinion (area of 5 specialization) is simply not supported by the record. Dr. Hascall, who 6 is an internist, is not a specialist in fibromyalgia. See Benecke, 379 7 F.3d at 594. Furthermore, the significance of Dr. Hascall’s opinion is 8 undermined by his own concession that Plaintiff’s fibromyalgia may not 9 be properly assessed based on a one-time examination. Indeed, Dr. 10 Hascall conducted an extremely limited review of the medical record. 11 According to his report, Dr. Hascall looked at only two handwritten 12 medical notes and one MRI of Plaintiff’s brain. (AR at 213). Though Dr. 13 Hascall 14 treating physician before issuing a final assessment of Plaintiff’s 15 limitations, there is no indication that any updated records were 16 provided to him. Thus, the ALJ’s decision to credit Dr. Hascall’s 17 opinion was not reasonable. recommended review of an updated report from Plaintiff’s 18 Finally, the ALJ criticized Dr. Bundy’s opinion because “the 19 ultimate conclusion of permanent disability . . . and inability to work 20 is reserved for the commissioner to determine.” (AR at 35). However, Dr. 21 Bundy’s conclusion that Plaintiff is disabled is not, in itself, a 22 legitimate reason for rejecting his entire opinion. See, e.g., Reddick, 23 157 F.3d at 725 (explaining that the Commissioner is not relieved of the 24 obligation to state specific and legitimate reasons for rejecting a 25 treating physician’s opinion even if the treating physician rendered an 26 opinion on the ultimate issue of disability); Embrey v. Bowen, 849 F.2d 27 418, 421-22 (9th Cir. 1988). 28 // 9 1 Accordingly, the ALJ failed to provide adequate reasons for 2 rejecting Dr. Bundy’s opinion and the decision to deny benefits is not 3 supported by substantial evidence. 4 5 IV. Conclusion 6 In general, the choice whether to reverse and remand for further 7 administrative proceedings, or to reverse and simply award benefits, is 8 within the discretion of the court. See Harman v. Apfel, 211 F.3d 1172, 9 1178 (9th Cir. 2000). The Ninth Circuit has observed that “the proper 10 course, except in rare circumstances, is to remand to the agency for 11 additional investigation or explanation.” Moisa v. Barnhart, 367 F.3d 12 882, 886 (9th Cir. 2004) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) 13 (per 14 appropriate “if enhancement of the record would be useful.” Benecke, 379 15 F.3d at 593; see Harman, 211 F.3d at 1179 (explaining that “the decision 16 whether to remand for further proceedings turns upon the likely utility 17 of such proceedings”). Remand for the payment of benefits is appropriate 18 where no useful purpose would be served by further administrative 19 proceedings, and the record has been fully developed, Lester, 81 F.3d at 20 834; or where remand would unnecessarily delay the receipt of benefits, 21 Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). curiam)). Remand for further administrative proceedings is 22 Here, remand for further administrative proceedings is warranted, 23 as the medical evidence was incomplete. Webb v. Barnhart, 433 F.3d 683, 24 687 (9th Cir. 25 is triggered by ambiguous evidence, the ALJ’s own finding that the 26 record is inadequate or the ALJ’s reliance on an expert’s conclusion 27 that the evidence is ambiguous.”) (citing Tonapetyan, 242 F.3d at 1150). 28 In particular, the consultative examiner requested an updated record 2006) (“The ALJ’s duty to supplement a claimant’s record 10 1 from Plaintiff’s treating physician to properly assess Plaintiff’s 2 fibromyalgia, but there is no indication that such a record was ever 3 provided. If the Commissioner is going to rely on a consultative 4 examination in making the disability determination, that examination 5 must be complete. Should further testimony from a vocational expert be 6 taken, the hypothetical questions posed to the vocational expert must 7 clearly and accurately reflect all of the limitations that impair 8 Plaintiff’s ability to work.1 9 ORDER 10 11 12 Accordingly, this action is remanded for further proceedings consistent with this Memorandum Opinion. 13 14 DATED: 15 January 7, 2011 ______________________________ MARC L. GOLDMAN United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Because the record is not sufficiently developed to support a determination of disability without further proceedings, the Court will not decide whether the remaining issue 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. 11
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