Sylvia Hernandez v. Michael J. Astrue, No. 2:2010cv08414 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is REMANDED to defendant for furthe r proceedings consistent with this Memorandum Opinion. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. **See Order for details.** (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 17 SYLVIA HERNANDEZ, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) COMMISSIONER OF SOCIAL ) SECURITY ADMINISTRATION, ) ) Defendant. ) ________________________________) No. CV 10-8414-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on November 9, 2010, seeking review of the Commissioner s denial 22 of her application for Disability Insurance Benefits. The parties filed Consents to proceed before 23 the undersigned Magistrate Judge on November 22, 2010, and December 6, 2010. The parties 24 filed a Joint Stipulation on July 14, 2011, that addresses their positions concerning the disputed 25 issues in the case. The Court has taken the Joint Stipulation under submission without oral 26 argument. 27 / 28 / 1 II. 2 BACKGROUND 3 Plaintiff was born on November 28, 1954. [Administrative Record ( AR ) at 77.] She 4 attended school into the twelfth grade, and has past relevant work experience as a waitress. [AR 5 at 29, 39, 114-15, 117.] 6 On December 21, 2006, plaintiff filed her application for Disability Insurance Benefits, 7 alleging that she has been disabled since June 22, 2006, due to pain in her left foot, her back, at 8 least one arm, and her right hand. [AR at 77, 103-05, 114, 141, 153.] After plaintiff s application 9 was denied initially and upon reconsideration, she requested a hearing before an Administrative 10 Law Judge ( ALJ ). [AR at 79-89.] A hearing was held on May 13, 2008, at which time plaintiff 11 appeared with her attorney and testified on her own behalf. [AR at 35-76.] A vocational expert 12 also testified. [AR at 64-73.] On July 16, 2008, the ALJ determined that plaintiff was not disabled. 13 [AR at 24-31.] When the Appeals Council denied plaintiff s request for review of the hearing 14 decision on September 14, 2010, the ALJ s decision became the final decision of the 15 Commissioner. [AR at 1-5.] This action followed. 16 17 III. 18 STANDARD OF REVIEW 19 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 20 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 21 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 22 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 23 In this context, the term substantial evidence means more than a mere scintilla but less 24 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 25 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 26 1257. When determining whether substantial evidence exists to support the Commissioner s 27 decision, the Court examines the administrative record as a whole, considering adverse as well 28 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 2 1 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 2 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 3 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 4 5 IV. 6 THE EVALUATION OF DISABILITY 7 Persons are disabled for purposes of receiving Social Security benefits if they are unable 8 to engage in any substantial gainful activity owing to a physical or mental impairment that is 9 expected to result in death or which has lasted or is expected to last for a continuous period of at 10 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 11 12 A. THE FIVE-STEP EVALUATION PROCESS 13 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 14 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 15 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 16 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 17 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 18 substantial gainful activity, the second step requires the Commissioner to determine whether the 19 claimant has a severe impairment or combination of impairments significantly limiting her ability 20 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 21 If the claimant has a severe impairment or combination of impairments, the third step requires 22 the Commissioner to determine whether the impairment or combination of impairments meets or 23 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, 24 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 25 If the claimant s impairment or combination of impairments does not meet or equal an impairment 26 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 27 sufficient residual functional capacity to perform her past work; if so, the claimant is not disabled 28 and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform 3 1 past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie 2 case of disability is established. The Commissioner then bears the burden of establishing that the 3 claimant is not disabled, because she can perform other substantial gainful work available in the 4 national economy. The determination of this issue comprises the fifth and final step in the 5 sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 6 at 1257. 7 8 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 9 In this case, at step one, the ALJ concluded that plaintiff has not engaged in any substantial 10 gainful activity since her alleged disability onset date, June 22, 2006. [AR at 26.]1 At step two, 11 the ALJ concluded that plaintiff has the severe impairments of a history of left foot osteomyelitis 12 and hammer toe surgery. [Id.] At step three, the ALJ concluded that plaintiff s impairments do not 13 meet or equal any of the impairments in the Listing. [Id.] The ALJ further found that plaintiff 14 retained the residual functional capacity ( RFC )2 to perform medium work,3 except for more than 15 occasional climbing, balancing, stooping, kneeling, crouching or crawling. [Id.] At step four, the 16 ALJ concluded that plaintiff is unable to perform her past relevant work. [AR at 29.] At step five, 17 the ALJ found, relying on the Medical-Vocational Guidelines (i.e., the grids ) and the vocational 18 expert s opinion, that plaintiff can perform jobs that exist in significant numbers in the national 19 economy, specifically as a hand packager and a cleaner. Accordingly, the ALJ found plaintiff not 20 disabled. [AR at 30-31.] 21 / 22 / 23 1 24 25 26 27 28 The ALJ concluded that plaintiff meets the insured status requirements of the Social Security Act through December 31, 2010. [AR at 26.] 2 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 3 Medium work is defined as work that involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. §§ 404.1567(c), 416.967(c). 4 1 V. 2 THE ALJ S DECISION 3 Plaintiff contends that: (1) the ALJ improperly evaluated the opinion of the treating 4 physician; and (2) the ALJ s residual functional capacity assessment is not supported by 5 substantial evidence based on the record as a whole. [Joint Stipulation ( JS ) at 3.] As set forth 6 below, the Court agrees with plaintiff, in part, and remands the matter for further proceedings. 7 8 9 10 A. TREATING PHYSICIAN S OPINION Plaintiff argues that the ALJ improperly rejected the treating physician s opinion. [JS at 3-7.] The Court agrees. 11 In evaluating medical opinions, the case law and regulations distinguish among the opinions 12 of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who 13 examine but do not treat the claimant (examining physicians); and (3) those who neither examine 14 nor treat the claimant (non-examining physicians). See 20 C.F.R. §§ 404.1502, 404.1527, 15 416.902, 416.927; see also Lester, 81 F.3d at 830. Generally, the opinions of treating physicians 16 are given greater weight than those of other physicians, because treating physicians are employed 17 to cure and therefore have a greater opportunity to know and observe the claimant. Orn v. Astrue, 18 495 F.3d 625, 631 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). Despite 19 the presumption of special weight afforded to treating physicians opinions, an ALJ is not bound 20 to accept the opinion of a treating physician. Where a treating physician s opinion does not 21 contradict other medical evidence, an ALJ must provide clear and convincing reasons to discount 22 it. An ALJ may afford less weight to a treating physician s opinion that conflicts with other medical 23 evidence only if the ALJ provides specific and legitimate reasons for discounting the opinion. See 24 Lester, 81 F.3d at 830; see also Orn, 495 F.3d at 632-33 ( Even when contradicted by an opinion 25 of an examining physician that constitutes substantial evidence, the treating physician s opinion 26 27 28 5 1 is still entitled to deference. ) (citation omitted); Social Security Ruling4 96-2p (a finding that a 2 treating physician s opinion is not entitled to controlling weight does not mean that the opinion is 3 rejected). Similar rules apply to an ALJ s evaluation of an examining physician s opinion. Lester, 4 81 F.3d at 830-31. 5 The record shows that plaintiff underwent hammer toe surgery on her left foot on June 20, 6 2006. [AR at 170.] The record also shows that plaintiff received medical treatment from 7 September 2005 to April 2008 from physicians and physician assistants at Sylmar Medical Center 8 for, among other things, pain, numbness, and swelling in her left foot. [See AR at 215-18, 222, 9 243, 271, 302.] In an undated letter written on or before June 5, 2008,5 Dr. Marvin S. Mina, a 10 physician at Sylmar Medical Center, summarized plaintiff s treatment history, stating that plaintiff 11 had a history of left foot osteomyelitis and peripheral neuropathy, and opining that plaintiff had 12 early signs and symptoms of chronic obstructive pulmonary disease and peripheral vascular 13 disease. [AR at 312.] Dr. Mina recommended that plaintiff elevate her foot daily, when not in use 14 for 15-20 minutes at a time to relieve swelling 6 and noted that [e]xcessive walking or standing 15 greater or equal to 10 minutes leads to edema. [Id.] In the decision, the ALJ rejected Dr. Mina s 16 opinion concerning plaintiff s limitations on several grounds: no objective medical findings or 17 observations in any of the treating records supported the diagnoses of peripheral neuropathy, 18 vascular disease or pulmonary disease; nothing in the record indicated that plaintiff s remaining 19 medical conditions would require her to keep her left foot elevated at the level of frequency 20 21 22 23 24 25 26 27 28 4 Social Security Rulings ( SSR ) do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 5 Dr. Mina s letter is undated, but was faxed to the Social Security Administration by Health Advocates, LLP, plaintiff s representative, on June 5, 2008. [AR at 311-12.] 6 The Court notes that this statement is ambiguous. Dr. Mina could have meant that plaintiff should elevate her foot daily every 15 to 20 minutes when not in use, or that plaintiff should elevate her foot daily, when not in use, for 15 to 20 minutes at a time. Upon remand, the ALJ should clarify Dr. Mina s recommendation to the extent necessary to reach a determination in this case. 6 1 recommended by Dr. Mina; and an examining physician had issued findings contrary to Dr. Mina s 2 opinion.7 [JS at 28.] 3 Because Dr. Mina s opinion was contradicted by other medical opinions, the ALJ was 4 required to provide specific and legitimate reasons to reject it. The Court concludes that the ALJ s 5 reasons for rejecting Dr. Mina s opinion are not legally sufficient. 6 First, the ALJ s bare assertion that Dr. Mina s diagnoses were not sufficiently supported by 7 the treatment record or the objective medical findings is not a proper reason, by itself, for rejecting 8 the opinion because it fails to reach the level of specificity required for rejecting a treating 9 physician s opinion. See Embrey v. Bowen, 849 F.2d 418, 421-23 (9th Cir. 1988) ( To say that 10 medical opinions are not supported by sufficient objective findings or are contrary to the 11 preponderant conclusions mandated by the objective findings does not achieve the level of 12 specificity our prior cases have required ... The ALJ must do more than offer his conclusions. He 13 must set forth his own interpretations and explain why they, rather than the doctors , are correct. ) 14 (footnote omitted). An ALJ can meet the requisite specific and legitimate standard for rejecting 15 a treating physician s opinion deemed inconsistent with or unsupported by the medical evidence 16 by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, 17 stating his interpretation thereof, and making findings. Reddick v. Chater, 157 F.3d 715, 725 (9th 18 Cir. 1998). Here, the ALJ s conclusory assertion that Dr. Mina s opinion was not supported by 19 objective medical findings or observations in the treating records [see AR at 28], without explaining 20 how the record was inconsistent with Dr. Mina s opinion, does not provide the degree of specificity 21 required to reject Dr. Mina s opinion. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) 22 (finding that rejecting the treating physician s opinion on the ground that it was contrary to clinical 23 findings in the record was broad and vague, failing to specify why the ALJ felt the treating 24 25 26 27 28 7 While the ALJ did not explicitly state that he was relying on the examining physician s findings to reject Dr. Mina s opinion, the ALJ rejected Dr. Mina s opinion and then noted that the examining physician had concluded plaintiff could lift and carry 50 pounds occasionally and 20 pounds frequently, stand, sit or walk for eight hours in a normal workday, and perform occasional bending, stooping, crouching, or crawling. [AR at 28, 249.] Thus, it appears that the ALJ relied on the examining physician s findings, at least in part, to reject Dr. Mina s opinion. 7 1 physician s opinion was flawed ); see also, e.g., Payne v. Astrue, 2009 WL 176071, at *6 (C.D. 2 Cal. Jan. 23, 2009) (finding inadequate an ALJ s conclusory rejection of a treating physician s 3 opinion as inconsistent with the medical treatment, where the ALJ did not specify how the 4 treatment record was inconsistent with the physician s opinion). 5 Second, an ALJ may not properly reject a treating physician s opinion by merely referencing 6 the contrary findings of another physician. Even when contradicted, a treating physician s opinion 7 is still entitled to deference, and the ALJ must provide specific and legitimate reasons supported 8 by substantial evidence for rejecting it. See Orn, 495 F.3d at 632-33; SSR 96-2p; see also 9 Valentine v. Comm r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) ( to reject the opinion 10 of a treating physician in favor of a conflicting opinion of an examining physician[,] an ALJ still 11 must make[] findings setting forth specific, legitimate reasons for doing so that are based on 12 substantial evidence in the record ) (quoting Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 13 2002)). Here, while the ALJ did not explicitly state that he was relying on the examining 14 physician s findings to reject Dr. Mina s opinion, his discussion of the examining physician s 15 findings immediately followed his other reasons for rejecting Dr. Mina s opinion. Thus, it appears 16 that the ALJ relied on the examining physician s findings, at least in part, to reject Dr. Mina s 17 opinion. [See AR at 29.] The ALJ s simple reference to the examining physician s findings, 18 however, does not justify his rejection of the treating physician s opinion. The ALJ s rejection of 19 Dr. Mina s opinion without expressly setting forth specific and legitimate reasons for doing so was 20 improper. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) ( The ALJ may not reject 21 the opinion of a treating physician, even if it is contradicted by the opinions of other doctors, 22 without providing specific and legitimate reasons supported by substantial evidence in the 23 record. ); see also Hostrawser v. Astrue, 364 Fed. Appx. 373, 376-77 (9th Cir. 2010) (citable for 24 its persuasive value pursuant to Ninth Circuit Rule 36-3) (ALJ erred in affording nontreating 25 physicians opinions controlling weight over the treating physicians opinions, where the ALJ did 26 not provide a thorough summary of the conflicting clinical evidence and his interpretations thereof 27 with an explanation as to why his interpretations of the evidence, rather than those of the treating 28 physicians, were correct). 8 1 Moreover, the ALJ s assertions that Dr. Mina s opinion was not supported by any objective 2 medical evidence or clinical findings is not entirely accurate. Despite the ALJ s statement that 3 there is no evidence of peripheral neuropathy, vascular disease, or pulmonary disease [AR at 28], 4 plaintiff s treatment records indeed show a history of pain [AR at 215-16, 218, 271, 302], 5 numbness [AR at 170, 215, 302], swelling [AR at 170, 216, 218], osteomyelitis [AR at 174, 209-17, 6 289-90, 304, 307], suspected gangrene [AR at 171, 256], and a bone spur [AR at 217, 270], all 7 in plaintiff s left foot. Furthermore, Dr. Harold Cohen in fact diagnosed plaintiff with peripheral 8 neuropathy in April 2006.8 [AR at 227.] Thus, this reason to reject Dr. Mina s opinion is not 9 legitimate, and remand is warranted on this issue. 10 Finally, Dr. Mina completed an RFC assessment of plaintiff in September 2008, after the 11 ALJ had rendered his decision. [AR at 314-18.] Dr. Mina based his assessment of plaintiff s 12 limitations on Sylmar Medical Center s treatment history of plaintiff, dating back to September 13 2005. [AR at 318.] Dr. Mina concluded, among other things, that plaintiff can continuously sit for 14 only 20 minutes at a time and continuously stand for only 10 minutes at a time, that she must rest 15 for 5 to 10 minutes every 20 to 30 minutes, and that, at a sedentary job, she should elevate her 16 legs for 50 percent of an eight-hour work day. [AR at 316-17.] Upon remand, the ALJ should 17 consider this assessment together with the rest of the record. 18 B. RFC DETERMINATION 19 Plaintiff next contends that the ALJ erred in his residual functional capacity determination 20 that plaintiff has the ability to perform medium work except for more than occasional climbing, 21 balancing, stooping, kneeling, crouching or crawling. [JS at 12-13; AR at 26.] As the ALJ s RFC 22 determination was based, in part, on his rejection of Dr. Mina s opinion, which the Court finds was 23 improper for the reasons discussed above, the ALJ is instructed to reassess plaintiff s RFC after 24 he has reconsidered the treating physician s opinion. 25 / 26 27 8 28 A diagnosis of peripheral neuropathy appears on two additional exam records bearing Dr. Cohen s stamp, but not his signature. [AR at 226, 231.] 9 1 VI. 2 REMAND FOR FURTHER PROCEEDINGS 3 As a general rule, remand is warranted where additional administrative proceedings could 4 remedy defects in the Commissioner s decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th 5 Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 6 In this case, remand is warranted in order for the ALJ to reconsider Dr. Mina s opinion. The ALJ 7 is instructed to take whatever further action is deemed appropriate and consistent with this 8 decision. 9 Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff s request for remand is granted; 10 (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant 11 for further proceedings consistent with this Memorandum Opinion. 12 13 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 14 15 16 DATED: August 31, 2011 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 10

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