Manuel Machuca v. Michael J. Astrue, No. 2:2010cv06771 - Document 14 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MANUEL MACHUCA, 12 13 14 15 16 17 18 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 10-06771 RZ MEMORANDUM OPINION AND ORDER In challenging the Social Security Commissioner s finding that he is not disabled, Plaintiff asserts two errors. 19 First, Plaintiff asserts that the Administrative Law Judge committed error by 20 not fully crediting the opinion of Dr. Keyes, the eye doctor who treated Plaintiff as part of 21 his Worker s Compensation claims. Plaintiff asserts that the Administrative Law Judge did 22 not distinguish between vocabulary used in the Worker s Compensation context and that 23 used in Social Security disability cases, and that, with a proper understanding of Dr. Keyes 24 reports, the residual functional capacity found by the Administrative Law Judge is not 25 supported by the record. As indicated below, issues concerning Dr. Keyes assessment 26 require a remand in this case. 27 Plaintiff has had retinal tears and vitreous hemorrhaging in his left eye. He 28 had three laser surgeries to repair the tears. Dr. Keyes opined that the eye injuries were 1 caused by Plaintiff s exertion and, following the three surgeries, stated that Plaintiff should 2 not engage in heavy lifting or strenuous physical exertion. Simply put, Dr. Keyes stated, 3 the patient should do only light or office work and, if such work is not available, he 4 should not work. [AR 418] 5 Using the definitions of physical exertion under the Social Security 6 regulations, the Administrative Law Judge found that Plaintiff could perform medium 7 work, with certain other restrictions. 8 Administrative Law Judge stated that some weight was given to his opinion [AR 25], but 9 he did not explain what that meant; the Court can find no explanation of any way in which 10 the Administrative Law Judge thought that Dr. Keyes opinion was deficient. It is clear, 11 however, that the Administrative Law Judge was aware of the Worker s Compensation 12 complexities, and concerned by the fact that an agreed medical examination had not taken 13 place in those proceedings. The Administrative Law Judge stated his concern with the 14 conclusions of Dr. Keyes as to the impact of weight and the retinal detachment. [AR 67] 15 Evidently, that is why he subsequently sent Plaintiff to have a consultative examination 16 with Dr. Ullman. 17 Insofar as Dr. Keyes was concerned, the The Administrative Law Judge had this to say about Dr. Ullman: 18 19 [B]ased upon his pathological findings, Dr. Ullman concluded 20 that the alleged level of vision was not consistent with the 21 degree of pathology present, as he would expect the claimant s 22 distance vision to be better in the left eye and reading vision to 23 be better in the right eye. [ ] Thus, the claimant s allegations 24 concerning the extent of functional limitation caused by his 25 status post retinal tear surgery are only partially credible in light 26 of the objective medical evidence. Moreover, the claimant s 27 testimony establishes no contrary conclusion and neither he nor 28 his attorney Mr. Finkelberg objected to the ophthalmological -2- 1 [sic] medical findings presented in Dr. Ullman s report (Ex. 2 12B). 3 4 [AR 22] Again, it is difficult to understand the impact of Dr. Ullman s assessment. 5 Dr. Ullman measured Plaintiff s distance and near vision, and did, indeed, express surprise 6 that the distance vision was better in the right eye and the near vision better in the left eye, 7 rather than vice versa. The Court assumes that Dr. Ullman meant that, given the surgeries 8 to the left eye, he would have expected the reverse of what he measured. Dr. Ullman made 9 this comment in response to a question on the form which asked Is alleged level of vision 10 consistent with degree of pathology? [AR 539] There is no indication of what meaning 11 this question has in the context of this case. Plaintiff was not alleging that his vision was 12 strong or weak; the issue instead is the effect of exertion on his eyes, given his history of 13 retinal tears and vitreous hemorrhaging. On that issue, however, Dr. Ullman did not opine; 14 on the Social Security form asking him to assess Plaintiff s ability to lift or carry, 15 Dr. Ullman marked out the boxes and wrote in NA. [AR 557] Thus, Dr. Ullman s view 16 of the pathology, and his surprise at Plaintiff s ability to see differently than he anticipated, 17 cannot be read as impeaching Dr. Keyes assessment of the danger to Plaintiff from 18 working in a job that requires physical exertion. 19 Thus, the only real evidence as to the level of exertion that Plaintiff safely can 20 tolerate came from Dr. Keyes, opining in the context of the Worker s Compensation 21 proceedings. Dr. Keyes, however, did not appear to be using Worker s Compensation 22 terminology in a technical sense. Thus, when he used the term light in describing the 23 kind of work that Plaintiff could perform, or when he said that Plaintiff should be 24 precluded from heavy lifting, it does not sound as if he had a particular weight limitation 25 in mind. His language is far more colloquial: Plaintiff should be precluded from working 26 at any job that includes heavy lifting or strenuous physical exertions. Simply put, the 27 patient should do only light or office work and, if such work is not available, he should not 28 work. [AR 418 (emphasis added)] -3- 1 Thus, the Court cannot agree with Defendant s position here that the 2 Administrative Law Judge s RFC finding was consistent with Dr. Keyes opinion 3 (Defendant s Memorandum at 4:1); the exertional limitations were, in fact, inconsistent 4 with Dr. Keyes assessment. The RFC provided that Plaintiff could exert 20 to 50 pounds 5 of force occasionally [AR 20]; occasionally means up to one-third of the work-day. See, 6 e.g., AR 557. Lifting up to 50 pounds up to two and a half hours a day, five days a week, 7 would not be consistent with the assessment made by Dr. Keyes that Plaintiff should not 8 physically exert himself in his work. It is clear from context that Dr. Keyes thought that 9 such exertion might cause a further tear to the retina and/or further vitreous bleeding. 10 Under the circumstances, therefore, the record does not contain substantial evidence in 11 support of the Administrative Law Judge s finding of Plaintiff s residual functional 12 capacity. Therefore, as well, the ultimate finding of non-disability cannot be sustained. 13 As his second argument, Plaintiff asserts that the Administrative Law Judge 14 erred in not fully crediting the opinion of Dr. Kunstat as to Plaintiff s mental impairment. 15 Again, Plaintiff argues that the Administrative Law Judge failed to translate Worker s 16 Compensation lingo into the realm of Social Security disability law. In this instance, 17 however, any such failure was not important. The Administrative Law Judge was not 18 required to give controlling weight to her opinion as to Plaintiff s capacity to work, and 19 there were contrary opinions by consultants which raised doubts as to the force of that 20 opinion. (However, the fact that one opinion was by a psychiatrist and Dr. Kunstat is a 21 psychologist is not a basis for distinction, as there were no issues identified by the 22 Administrative Law Judge with respect to medications, something that a psychiatrist, but 23 not a psychologist, could administer, or any other basis for saying that a medical doctor 24 was more expert than a doctor of psychology.) In addition, the Administrative Law Judge 25 pointed out that Plaintiff himself thought that he could and should work, with vocational 26 training. All these were sufficient reasons under the law for not fully relying on the 27 opinion of Dr. Kunstat. 28 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Morgan v. Apfel, 169 F.3d 595, 602-03 (9th Cir. 1999); -4- 1 In accordance with the foregoing, the decision of the Commissioner is 2 reversed, and the matter is remanded for further proceedings consistent with this 3 memorandum. 4 IT IS SO ORDERED. 5 6 DATED: October 6, 2011 7 8 9 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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