Cornelius Tatum v. Michael J. Astrue, No. 2:2010cv07538 - Document 17 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED forfurther proceedings consistent with this Memorandum Opinion and Order. (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CORNELIUS TATUM, 12 13 14 15 16 ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 10-07538-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on October 19, 2010, seeking review of 19 the denial by the Social Security Commissioner (the Commissioner ) of 20 plaintiff s application for a period of disability and disability 21 insurance 22 consented, pursuant to 28 U.S.C. § 636(c), to proceed before the 23 undersigned United States Magistrate Judge. The parties filed a Joint 24 Stipulation on July 28, 2011, in which: plaintiff seeks an order 25 reversing the Commissioner s decision and remanding this case for the 26 payment 27 proceedings; and defendant requests that the Commissioner s decision be 28 affirmed benefits of benefits or, ( DIB ). or, On December alternatively, alternatively, remanded 16, for for 2010, further further the parties administrative administrative 1 proceedings. The Court has taken the parties Joint Stipulation under 2 submission without oral argument. 3 4 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 5 6 On November 1, 2007, plaintiff filed an application for a period of 7 disability and DIB. (Administrative 8 Plaintiff, who was born on April 7, 1970,1 claims to have been disabled 9 since August 20, 2007, due to lower back injuries.2 10 61.) 11 Record ( A.R. ) 11, 16.) (A.R. 11-17, 50, Plaintiff has past relevant work experience as a material handler/warehouseman. (A.R. 15.) 12 13 After the Commissioner denied plaintiff s claim initially and upon 14 reconsideration (A.R. 11, 50-54, 61-65), plaintiff requested a hearing 15 (A.R. 67). 16 appeared and testified at a hearing before Administrative Law Judge 17 Michael D. Radensky (the ALJ ). (A.R. 18-47.) Plaintiff s wife, Kisha 18 Tatum (A.R. 37-42), and vocational expert Rinehart (A.R. 43-46) also 19 testified. On June 5, 2009, plaintiff, who was represented by counsel, 20 21 On August 27, 2009, the ALJ denied plaintiff s claim (A.R. 11-17), 22 and the Appeals Council subsequently denied plaintiff s request for 23 review of the ALJ s decision (A.R. 2-4). That decision is now at issue 24 25 1 26 On the date of the alleged disability onset date, plaintiff was 37 years old, which is defined as a younger individual. (A.R. 16; citing 20 C.F.R. § 404.1563.) 27 2 28 In the Joint Stipulation, plaintiff claims disability due to severe back pain. (Joint Stipulation Joint Stip. at 2.) 2 1 in this action. 2 3 SUMMARY OF ADMINISTRATIVE DECISION 4 5 The ALJ found that plaintiff meets the insured status requirements 6 of the Social Security Act through December 21, 2011. 7 ALJ also found that plaintiff has not engaged in substantial gainful 8 activity since August 20, 2007, the alleged onset date. 9 determined that plaintiff has the severe impairment of degenerative disc (Id.) (A.R. 13.) (Id.) The The ALJ 10 disease of the lumbar spine. The ALJ further determined that 11 plaintiff does not have an impairment or combination of impairments that 12 meets or medically equals one of the listed impairments in 20 C.F.R. 13 Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 14 404.1526). (Id.) 15 16 After reviewing the record, the ALJ determined that plaintiff has 17 the residual functional capacity ( RFC ) to perform light work as 18 defined in 20 C.F.R. § 404.1567(b), with the exception that plaintiff 19 can perform no more than occasional postural activities. 20 The ALJ further determined that plaintiff is unable to perform his past 21 relevant work as a material handler/warehouseman. (A.R. 14.) (Id.) 22 The ALJ found that plaintiff has at least a high school education 23 24 and is able to communicate in English. 25 that 26 determination of disability because using the Medical-Vocational Rules 27 as a framework supports a finding that [plaintiff] is not disabled, 28 whether or not [plaintiff] has transferable job skills. [t]ransferability of job (A.R. 16.) skills 3 is not The ALJ also found material to (Id.) the 1 Having considered plaintiff s age, education, work experience, and 2 RFC, as well as the testimony of the vocational expert, the ALJ found 3 that jobs exist in significant numbers in the national economy that 4 plaintiff could perform, including those of assembler small parts I, 5 cashier, and electronic worker. 6 concluded that plaintiff has not been under a disability, as defined in 7 the Social Security Act, from August 20, 2007, through the date of his 8 decision. (A.R. 16.) Accordingly, the ALJ (A.R. 17.) 9 10 STANDARD OF REVIEW 11 12 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 13 decision to determine whether it is free from legal error and supported 14 by substantial evidence in the record as a whole. 15 F.3d 625, 630 (9th Cir. 2007). 16 evidence as a reasonable mind might accept as adequate to support a 17 conclusion. 18 a mere scintilla but not necessarily a preponderance. 19 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 20 record can constitute substantial evidence, only those reasonably drawn 21 from the record will suffice. 22 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 23 24 Although this Court cannot substitute its discretion for that of 25 the Commissioner, the Court nonetheless must review the record as a 26 whole, weighing both the evidence that supports and the evidence that 27 detracts from the [Commissioner s] conclusion. 28 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 4 Desrosiers v. Sec y of 1 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The ALJ is 2 responsible for determining credibility, resolving conflicts in medical 3 testimony, and for resolving ambiguities. 4 1035, 1039 (9th Cir. 1995). Andrews v. Shalala, 53 F.3d 5 6 The Court will uphold the Commissioner s decision when the evidence 7 is susceptible to more than one rational interpretation. Burch v. 8 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 9 review only the reasons stated by the ALJ in his decision and may not However, the Court may 10 affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d 11 at 630; see also Connett, 340 F.3d at 874. 12 the Commissioner s decision if it is based on harmless error, which 13 exists only when it is clear from the record that an ALJ s error was 14 inconsequential to the ultimate nondisability determination. Robbins 15 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 16 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 17 at 679. The Court will not reverse 18 19 DISCUSSION 20 Plaintiff makes the following claims: 21 (1) the ALJ s decision is 22 not supported by substantial evidence; and (2) the ALJ failed to 23 properly reject the testimony of plaintiff and his wife. 24 at 3-17.) 25 /// 26 /// 27 /// 28 /// 5 (Joint Stip. 1 I. The ALJ Failed To Give A Specific And Legitimate Reason Supported 2 By Substantial Evidence For Rejecting The Opinion Of Plaintiff s 3 Treating Doctor. 4 5 Plaintiff claims that the ALJ s decision is not supported by 6 substantial evidence, because the ALJ failed to properly reject the 7 opinion of plaintiff s treating doctor and, instead, improperly relied 8 upon the opinions of nonexamining doctors. (Joint Stip. at 3-5, 8-11.) 9 10 It is the responsibility of the ALJ to analyze evidence and resolve Magallanes v. Bowen, 881 F.2d 747, 750 11 conflicts in medical testimony. 12 (9th Cir. 1989). 13 assessing a social security claim, [g]enerally, a treating physician s 14 opinion carries more weight than an examining physician s, and an 15 examining physician s opinion carries more weight than a reviewing 16 physician s. 17 2001); 20 C.F.R. § 404.1527(d). In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 18 19 The opinions of treating physicians are entitled to the greatest 20 weight, because the treating physician is hired to cure and has a better 21 opportunity to observe the claimant. 22 a treating physician s opinion is not contradicted by another physician, 23 it may be rejected only for clear and convincing reasons. 24 Chater, 81 F.3d 821, 830 (9th Cir. 1995)(as amended). When contradicted 25 by another doctor, a treating physician s opinion may only be rejected 26 if the ALJ provides specific and legitimate reasons supported by 27 substantial evidence in the record. 28 physician cannot by itself Magallanes, 881 F.2d at 751. When Lester v. Id. The opinion of a nonexamining constitute 6 substantial evidence that 1 justifies the rejection of the opinion of . . . a treating physician. 2 Id. at 831; see Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 3 1990)(finding that the nonexamining physician s opinion with nothing 4 more did not constitute substantial evidence). 5 6 An ALJ has a special duty to fully and fairly develop the record 7 and to assure that claimant s interests are considered. 8 Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Pursuant to 20 C.F.R. § 9 404.1512(e), additional the Administration will seek Brown v. evidence or 10 clarification from your medical source when the report from your medical 11 source contains a conflict or ambiguity that must be resolved, [or] the 12 report does not contain all the necessary information . . . . 13 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)(noting that [i]f 14 the ALJ thought he needed to know the basis of [the doctor s] opinions 15 in order to evaluate them, he had a duty to conduct an appropriate 16 inquiry ). See 17 18 On October 5, 2007, plaintiff was seen for a follow-up evaluation 19 by Dr. Alex H. Etemad, M.D., an orthopedic specialist and plaintiff s 20 primary 21 condition. 22 findings 23 [l]umbar spine L5-S1 disc-desiccation, dehydration and darkening as 24 shown on the MRI with 4-millimeter herniation as well as milder findings 25 at the L2-L3 level with severe and disabling low[er] back pain with 26 radiation to the left thigh. 27 plaintiff had continued spasm, tenderness and guarding and positive 28 straight treating physician, (A.R. 201-04.) in leg great raise his allegedly disabling spinal After reviewing plaintiff s MRI film and detail, with for Dr. Etemad diagnosed (A.R. 202.) radicular 7 finding plaintiff with Dr. Etemad found that . . . as [previously] 1 documented in detail [in his] chart. (A.R. 201.) 2 noted that plaintiff has tried various therapy modalities as well as 3 various medications . . . , but the pain is persisting. 4 Dr. Etemad noted that plaintiff s back pain has been causing a lot of 5 limitation, pain, tenderness, and muscle spasms for a long period of 6 time. (Id.) Accordingly, Dr. Etemad opined that the proper course of 7 action is to provide epidural steroid injections with the hope that by 8 performing these outpatient injections . . . [plaintiff] can avoid 9 surgery [on his] low[er] back. (Id.) Dr. Etemad also (A.R. 202.) Dr. Etemad also refilled 10 plaintiff s prescription for Vicodin extra strength as well as Soma. 11 (A.R. 203.) 12 totally disabled and unable to work until January 2, 2008, due to his 13 low[er] back condition. Dr. Etemad opined that plaintiff would be temporarily and (Id.) 14 15 Treatment notes from November 7, 2007, to August 27, 2008, which 16 appear to contain Dr. Etemad s signature, indicate that plaintiff 17 continued to experience pain, stiffness, and spasms. (A.R. 226-30.) In 18 addition, Dr. Etemad again diagnosed plaintiff with problems in his left 19 thigh and lower back at the L5-S1 and L2-L3 locations. 20 respect 21 disability, a December 14, 2007 treatment note indicated that plaintiff 22 would be unable to work until March 1, 2008. 23 treatment note indicated that plaintiff would not be able to work until 24 September 16, 2008. 25 plaintiff wanted to return to work, and return to work was listed, 26 among other things, in plaintiff s treatment plan. to Dr. Etemad s opinion regarding (Id.) plaintiff s With temporary Similarly, a May 16, 2008 An August 27, 2008 treatment note indicated that (A.R. 226.) 27 28 In his decision, it appears that the ALJ gives less weight to Dr. 8 1 Etemad s opinion than that of the State Agency reviewing physicians, 2 because Dr. Etemad only found that plaintiff was temporarily disabled 3 and would be able to return to work. 4 the record contains opinions from [plaintiff s] treating physician 5 regarding temporary disability (Exhibits 2F, p. 6 and 6F, p. 5). 6 records show [plaintiff] would be able to return to work and therefore, 7 do not warrant great weight. 3 8 weight, 9 physicians. however, to the Specifically, the ALJ notes that (A.R. 15.) opinions of the Both The ALJ did give great State Agency reviewing 10 The 11 ALJ s reason for rejecting Dr. Etemad s opinion is not 12 specific, legitimate, or supported by substantial evidence, as required. 13 As an initial matter, the two records cited by the ALJ, in which 14 plaintiff was found to be temporarily and totally disabled, were 15 completed by two different physicians, not one, as the ALJ s opinion 16 suggests. 17 temporarily and totally disabled from August 23, 2007, to September 6, 18 2007 -- was completed by Gabriel Martin del Campo, M.D. 19 The 20 temporarily and totally disabled until January 2, 2008 -- was completed 21 by Dr. Etemad, on November 5, 2007. 22 the ALJ s suggestion, it does not appear that Dr. Etemad opined that second The first record cited by the ALJ -- finding plaintiff to be record cited by the ALJ -- finding (A.R. 203.) (A.R. 217.) plaintiff to be Further, contrary to 23 24 25 26 27 28 3 In determining that plaintiff does not meet a Listing, the ALJ loosely refers to the findings and opinion of Dr. Etemad. Specifically the ALJ notes that [s]ubsequent medical records show [plaintiff] was seen sporadically with similar [lower back] complaints for which he has received conservative treatment consisting of prescription medication and a series of 3 epidural injections (Exhibits 2F, 6F, 7F, and 8F). The ALJ s summary of plaintiff s treatment, however, does not constitute an appropriate reason for rejecting the opinion and findings of Dr. Etemad. 9 1 plaintiff could return to work. In fact, later treatment notes from Dr. 2 Etemad, which the ALJ either ignored or inexplicably failed to discuss, 3 indicate, inter alia, continuing periods of temporary disability. 4 example, a December 14, 2007 treatment note indicated that plaintiff 5 could not work until March 1, 2008. 6 2008 treatment note indicated that plaintiff could not work until 7 September 16, 2008. 8 returning to work is in an August 27, 2008 treatment note in which Dr. 9 Etemad noted that plaintiff wants to return to work and listed return 10 to work as part of plaintiff s treatment plan; however, it is unclear 11 whether Dr. Etemad believed plaintiff could perform work at that time or 12 at some date in the future. 13 cannot constitute a specific and legitimate reason for rejecting Dr. 14 Etemad s opinion.4 (A.R. 227.) (A.R. 229.) For Similarly, a May 16, The only reference to plaintiff (A.R. 226.) Accordingly, the ALJ s reason 15 16 4 17 18 19 20 21 22 23 24 25 26 27 28 Defendant contends that Dr. Etemad s finding that plaintiff was temporarily and totally disabled is not entitled to special weight, because such disability determinations are reserved to the Commissioner. (Joint Stip. at 6-7.) While it is true that a treating physician s opinion on the matter of ultimate disability is not entitled to special significance, a treating physician s medical opinion is generally [entitled] to more weight. Boardman v. Astrue, 286 Fed. Appx. 397, 399 (9th Cir. 2008). A medical opinion reflect[s] judgments about the nature and severity of [a claimant s] impairment(s), including [a claimant s] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairment(s), and [a claimant s] physical or mental restrictions. Id. (citing 20 C.F.R. § 404.1527(a)(2)). Here, not only did Dr. Etemad find plaintiff to be temporarily and totally disabled, but he also opined, after reviewing plaintiff s charts and MRI, that plaintiff has, inter alia: severe and disabling back pain with radiation to the left thigh, which has been causing a lot of limitation, pain, tenderness, and muscle spasms (A.R. 201-202); and continued spasms, tenderness and guarding and positive leg raise with radicular finding (A.R. 201). Critically, the ALJ failed to give a specific and legitimate reason for rejecting Dr. Etemad s opinion regarding plaintiff s symptoms and limitations. Thus, to the extent defendant contends that the ALJ properly gave less weight to Dr. Etemad s medical opinion because it also contained an opinion regarding disability, defendant s argument is not legitimate. 10 1 Moreover, while the ALJ relies on the opinions of nonexamining 2 State Agency review physicians Dr. Khank T. Vu, D.O., an osteopathic 3 physician (A.R. 205-11), and Diane B. Rose, M.D., an internal medicine 4 specialist 5 substantial evidence, because they are not based on any independent 6 findings, and the ALJ failed to give a specific and legitimate reason 7 for rejecting Dr. Etemad s opinion.5 8 that where a nontreating source s opinion contradicts that of the 9 treating physician but is not based on independent clinical findings, or 10 rests on clinical findings also considered by the treating physician, 11 the opinion of the treating physician may be rejected only if the ALJ 12 gives specific, legitimate reasons for doings so that are based on 13 substantial evidence of record ). (A.R. 212), their opinions, alone, cannot constitute Andrews, 53 F.3d at 1041 (noting 14 15 Accordingly, for the aforementioned reasons, the ALJ failed to give 16 a specific and legitimate reason supported by substantial evidence for 17 rejecting the opinion of plaintiff s treating physician, Dr. Etemad. 18 This constitutes error. 19 Dr. Etemad s opinion and to the degree necessary, conduct an appropriate 20 inquiry regarding the extent of plaintiff s symptoms and limitations, 21 which Dr. Etemad opined, on several occasions, to be totally and 22 temporarily disabling. 23 /// 24 /// 25 /// On remand, the ALJ needs to properly consider 26 5 27 28 Indeed, Dr. Vu s December 17, 2007 opinion predates many of Dr. Etemad s later treatment notes and there is no indication that Dr. Rose, in affirming Dr. Vu s opinion, was provided and/or took into account any of Dr. Etemad s later treatment notes. 11 1 II. The ALJ Must Reconsider The Testimony Of Plaintiff And His Wife. 2 3 Based on the foregoing, there are several matters that the ALJ 4 needs to review and reconsider on remand. As a result, the ALJ s 5 evaluation of the testimony of plaintiff and his wife, as well as his 6 ultimate determination regarding plaintiff s credibility, may change. 7 Accordingly, the Court does not reach plaintiff s second claim -- to 8 wit, that the ALJ failed to properly reject the testimony of plaintiff 9 and his wife. To properly review and reconsider this issue, the ALJ 10 needs to consider all the findings of plaintiff s treating doctor and, 11 to the degree necessary, conduct an appropriate inquiry to resolve any 12 ambiguity 13 limitations. After so doing, the ALJ can determine what impact, if any, 14 this has on his assessment of the testimony of plaintiff and his wife. surrounding the extent of plaintiff s symptoms and 15 16 III. Remand Is Required. 17 18 The decision whether to remand for further proceedings or order an 19 immediate award of benefits is within the district court s discretion. 20 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 21 useful purpose would be served by further administrative proceedings, or 22 where the record has been fully developed, it is appropriate to exercise 23 this discretion to direct an immediate award of benefits. 24 ( [T]he decision of whether to remand for further proceedings turns upon 25 the likely utility of such proceedings. ). 26 outstanding issues that must be resolved before a determination of 27 disability can be made, and it is not clear from the record that the ALJ 28 would be required to find the claimant disabled if all the evidence were 12 Where no Id. at 1179 However, where there are 1 properly evaluated, remand is appropriate. Id. at 1179-81. 2 3 Remand is the appropriate remedy to allow the ALJ the opportunity 4 to remedy the above-mentioned deficiencies and errors. See, e.g., 5 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 6 further proceedings is appropriate if enhancement of the record would be 7 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 8 (remand appropriate to remedy defects in the record). 9 ALJ must correct the above-mentioned deficiencies and errors and, to the On remand, the 10 extent necessary, conduct an appropriate inquiry. 11 ALJ may need to reassess plaintiff s RFC in which case additional 12 testimony from a vocational expert likely will be needed to determine 13 what work, if any, plaintiff can perform. 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 13 After so doing, the 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: August 25, 2011 14 15 16 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 14

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