James Andrew Nevins v. Michael J Astrue, No. 2:2011cv00828 - Document 21 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION and ORDER by Jean P Rosenbluth: For the reasons stated below, the Commissioner's decision is reversed and this matter is remanded for further proceedings. (See document for details.) (rla)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 JAMES ANDREW NEVINS, Plaintiff, 13 v. 14 15 16 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-0828 JPR MEMORANDUM OPINION AND ORDER 19 20 21 I. PROCEEDINGS Plaintiff seeks review of the Commissioner s final decision 22 denying his application for Social Security Disability Benefits and 23 Supplemental Security Income. 24 on November 9, 2011. 25 submission without oral argument. 26 Commissioner s decision is reversed and this matter is remanded for 27 further proceedings. 28 The parties filed a Joint Stipulation The Court has taken the Joint Stipulation under For the reasons stated below, the 1 II. 2 BACKGROUND Plaintiff was born on January 6, 1955. (Administrative Record 3 ( AR ) 19.) He graduated high school and worked as a letter carrier 4 from October 1987 until his injury on October 17, 2006. 5 20, 156.) He has not worked at all since that date. (AR 11, 19- (AR 20.) 6 On June 29, 2007, Plaintiff filed an application for Social 7 Security Disability Benefits, alleging that he had been unable to work 8 since October 17, 2006, because of chronic neck and shoulder pain and 9 severe headaches stemming from a shoulder and neck injury. (AR 95, 10 123.) 11 hearing before an Administrative Law Judge ( ALJ ). 12 held on December 17, 2008, at which time Plaintiff appeared with 13 counsel and testified on his own behalf. 14 Expert also testified. 15 was not disabled. 16 denied Plaintiff s request for review. 17 followed. 18 III. STANDARD OF REVIEW 19 After Plaintiff s application was denied, he requested a (AR 30-43.) (AR 15.) (AR 89.) (AR 16-43.) It was A Vocational The ALJ determined that Plaintiff On January 20, 2011, the Appeals Council (AR 1 3.) This action Pursuant to 42 U.S.C. § 405(g), a district court may review the 20 Commissioner s decision to deny benefits. 21 findings and decision should be upheld if they are free from legal 22 error and are supported by substantial evidence based on the record as 23 a whole. 24 Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 25 742, 746 (9th Cir. 2007). 26 a reasonable person might accept as adequate to support a conclusion. 27 Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 28 1035 (9th Cir. 2007). The Commissioner s or ALJ s § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Substantial evidence means such evidence as It is more than a scintilla but less than a 2 1 preponderance. 2 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 3 substantial evidence supports a finding, the reviewing court must 4 review the administrative record as a whole, weighing both the 5 evidence that supports and the evidence that detracts from the 6 Commissioner s conclusion. 7 Cir. 1996). 8 or reversing, the reviewing court may not substitute its judgment 9 for that of the Commissioner. 10 11 IV. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. To determine whether Reddick v. Chater, 157 F.3d 715, 720 (9th If the evidence can reasonably support either affirming Id. at 720-21. THE EVALUATION OF DISABILITY People are disabled for purposes of receiving Social Security 12 benefits if they are unable to engage in any substantial gainful 13 activity owing to a physical or mental impairment that is expected to 14 result in death or which has lasted, or is expected to last, for a 15 continuous period of at least 12 months. 16 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 42 U.S.C. § 423(d)(1)(A); 17 A. The five-step evaluation process 18 The Commissioner (or ALJ) follows a five-step sequential 19 evaluation process in assessing whether a claimant is disabled. 20 C.F.R. § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 21 Cir. 1995) (as amended Apr. 9, 1996). 22 Commissioner must determine whether the claimant is currently engaged 23 in substantial gainful activity; if so, the claimant is not disabled 24 and the claim is denied. 25 engaged in substantial gainful activity, the second step requires the 26 Commissioner to determine whether the claimant has a severe 27 impairment or combination of impairments significantly limiting her 28 ability to do basic work activities; if not, a finding of In the first step, the § 416.920(a)(4)(i). 3 20 If the claimant is not 1 nondisability is made and the claim is denied. § 416.920(a)(4)(ii). 2 If the claimant has a severe impairment or combination of 3 impairments, the third step requires the Commissioner to determine 4 whether the impairment or combination of impairments meets or equals 5 an impairment in the Listing of Impairments ( Listing ) set forth at 6 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is 7 conclusively presumed and benefits are awarded. § 416.920(a)(4)(iii). 8 If the claimant s impairment or combination of impairments does not 9 meet or equal an impairment in the Listing, the fourth step requires 10 the Commissioner to determine whether the claimant has sufficient 11 residual functional capacity ( RFC )1 to perform his past work; if so, 12 the claimant is not disabled and the claim is denied. 13 § 416.920(a)(4)(iv). 14 is unable to perform past relevant work. 15 If the claimant meets that burden, a prima facie case of disability is 16 established. 17 relevant work, the Commissioner then bears the burden of establishing 18 that the claimant is not disabled because he can perform other 19 substantial gainful work available in the national economy. 20 § 416.920(a)(4)(iv). 21 step in the sequential analysis. 22 n.5; Drouin, 966 F.2d at 1257. Id. The claimant has the burden of proving that he Drouin, 966 F.2d at 1257. If that happens or if the claimant has no past That determination comprises the fifth and final § 416.920; Lester, 81 F.3d at 828 23 B. 24 At step one, the ALJ found that Plaintiff had not engaged in any 25 The ALJ s application of the five-step process substantial gainful activity since October 17, 2006, the date of the 26 27 28 1 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 416.945(a); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 onset of his alleged disability. 2 concluded that Plaintiff had the severe impairments of status post 3 left shoulder repair/clavicle resection and multi-level degenerative 4 disc disease of the cervical spine with neural foraminal narrowing and 5 stenosis. 6 impairments did not meet or equal any of the impairments in the 7 Listing. 8 the RFC to perform a range of light work 2 except for limitation to 9 occasional pushing/pulling with the left upper extremity; occasional (Id.) (Id.) (AR 11.) At step two, the ALJ At step three, the ALJ determined that Plaintiff s At step four, the ALJ found that Plaintiff retained 10 overhead reaching with the left upper extremity; any concentrated 11 exposure to vibrating tools; or any neck movement to the end ranges of 12 motion (e.g., chin to chest, eyes skyward, or looking back over the 13 shoulders with body static). 14 The ALJ concluded that Plaintiff was unable to perform his past 15 relevant work as a letter carrier but acquired from that work 16 transferable skills of effectively communicating with the public, and 17 customer service. 18 the Vocational Expert s testimony and application of the 19 Medical Vocational Guidelines, that jobs existed in significant 20 numbers in the national economy that Plaintiff could perform. 21 The ALJ agreed with the Vocational Expert that Plaintiff could perform (AR 14.) (Id.); see 20 C.F.R. § 404.1567(b). At step five, the ALJ found, based on (Id.) 22 23 24 25 26 27 28 2 Light work is defined as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 404.1567(b). The regulations further specify that [e]ven though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. Id. A person capable of light work is also capable of sedentary work, which involves lifting no more than 10 pounds at a time and occasionally lifting or carrying [small articles], and which mostly involves sitting but may involve occasional walking or standing. § 404.1567(a)-(b). 5 1 the work of information clerk and gate guard. 2 the ALJ determined that Plaintiff was not disabled. 3 V. 4 (Id.) Accordingly, (AR 15.) DISCUSSION Plaintiff contends the ALJ improperly (1) rejected the opinion of 5 his treating physician, Dr. Robert Byers (J. Stip. 5-9); (2) found 6 that Plaintiff was not credible as to the intensity, persistence, and 7 limiting effects of his alleged disability (J. Stip. 9-13); and (3) 8 credited the Vocational Expert s testimony that Plaintiff could 9 perform alternative work (J. Stip. 13-19). 10 11 12 A. Rejection of treating physician s opinion 1. Applicable law Generally, the opinions of treating physicians are afforded more 13 weight than the opinions of nontreating physicians because treating 14 physicians are employed to cure and have a greater opportunity to know 15 and observe the claimant. 16 Cir. 1996). 17 on whether it was supported by sufficient medical data and was 18 consistent with other evidence in the record. 19 § 416.927(d)(2). 20 by medically acceptable clinical and laboratory diagnostic techniques 21 and was not inconsistent with the other substantial evidence in the 22 record, it should be given controlling weight and should be rejected 23 only for clear and convincing reasons. 24 § 416.927(d)(2). 25 other medical evidence, the ALJ must provide specific and legitimate 26 reasons for discounting the treating opinion. 27 830; Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 28 relevant to the evaluation of a treating physician s opinion include Smolen v. Chater, 80 F.3d 1273, 1285 (9th The weight given a treating physician s opinion depends See 20 C.F.R. If a treating physician s opinion was well supported See Lester, 81 F.3d at 830; When a treating physician s opinion conflicts with 6 Lester, 81 F.3d at Factors 1 the [l]ength of the treatment relationship and the frequency of 2 examination as well as the nature and extent of the treatment 3 relationship between the patient and the physician. 4 § 416.927(d)(2)(i)-(ii). 2. 5 Applicable facts Dr. Byers had been Plaintiff s treating physician since before 6 7 his injury, in October 2006. (AR 29.) Notes from Dr. Byers s 8 multiple examinations of Plaintiff between 2006 and 2008 showed that 9 Plaintiff suffered from muscle spasms, decreased range of motion, left 10 shoulder pain as a result of left rotator cuff syndrome, tendonitis, 11 chronic pain syndrome, and weight loss. 12 Tests revealed neck pain with muscle spasms. (AR 183, 185-86, 298-99.) (AR 301.) In February 2007, Dr. Byers referred Plaintiff to Dr. Stephen 13 14 Birch, an orthopedist. 15 surgery on Plaintiff s shoulder on March 15, 2007, including a distal 16 clavicle resection and arthroscopic subacromial decompression. (AR 17 124, 270.) (AR 18 270.) 19 but his neck did not, and Plaintiff continued to suffer from chronic 20 pain and decreased range of motion in the neck, left shoulder 21 stiffness, and pain with movement. 22 (AR 270.) Dr. Birch performed arthroscopic A tear was discovered in Plaintiff s rotator cuff. Plaintiff s shoulder functionality improved after the surgery (Id.) On September 26, 2007, Dr. Birch examined Plaintiff again and 23 found that Plaintiff had limited range of motion in his neck and 24 shoulder and significant pain in the anterior lateral clavicular area 25 with cross-body adduction of the left shoulder. 26 diagnosed Plaintiff with the following impairments: (AR 271.) Dr. Birch 27 1. Trauma to the cervical spine and left shoulder . . . . 28 2. Painful and stiff left shoulder as described above, 7 1 status post distal clavicle resection and acromioplasty 2 with evidence of rotator cuff pain with rotator cuff 3 stressing procedures. 4 3. Cervical spine strain with evidence of loss of cervical 5 lordosis on plain films and a tiny herniated nucleus 6 pulposus at C5-6 on the left causing mild foraminal 7 stenosis at the C5-6 level. 8 4. L5-S1 with a mild retrolisthesis of L5 on S1. 9 10 5. 6. Thoracic spine pain, most likely referred from the cervical spine. 13 14 Low back pain with intermittent sciatica left lower extremity. 11 12 Degenerative disc disease at L4-5 and more significantly 7. Persistent moderate cervical spine pain that makes it 15 difficult for this gentleman to sleep. 16 Lyrica 17 intermittently 18 Dilaudid. 19 8. and Dilaudid uses at night Percocet in for He requires sleep. exchange for He the Chronic pain syndrome that will ultimately need referral to Pain Management for long-term management. 20 21 (AR 272.) 22 neurologist, Dr. Philip Delio, who believed Plaintiff s neck symptoms 23 were primarily musculoskeletal strain and ligamentous injury, and by 24 an orthopedic spine specialist, Dr. Kahmann, who believed Plaintiff 25 has a chronic sprain problem with the ligaments in his neck with no 26 neurologic impingement. 27 28 Dr. Birch also noted that Plaintiff had been seen by a (AR 271.) In addition to referring Plaintiff to Dr. Birch, Dr. Byers also referred Plaintiff to a physical therapist, who treated Plaintiff 8 1 between April and September 2007 and who consistently found that 2 Plaintiff suffered from chronic pain and severe signs and symptoms 3 in his neck and shoulder areas indicative of possible spinal 4 arthritis. 5 Plaintiff was also seen by Dr. Mark Montgomery, who referred Plaintiff 6 for an MRI on his left shoulder and diagnosed a left rotator cuff tear 7 (AR 167, 169, 172, 175, 305), and Dr. Donald Fareed, who diagnosed 8 Plaintiff with shoulder sprain and related ailments and gave Plaintiff 9 multiple injections to his shoulder, which ultimately did not cure the (AR 207-60.) In early 2007, prior to his surgery, 10 problem (AR 162-63). In April 2007, Plaintiff was also seen by Dr. 11 Jeoffrey Benson, who gave Plaintiff a C6-C7 translaminar epidural 12 steroid injection and a left C5-C6 transforaminal epidural steroid 13 injection. (AR 177-80.) On October 16, 2008, Dr. Byers completed a physical residual 14 15 functional capacity questionnaire for Plaintiff. (AR 306-09.) Dr. 16 Byers reported that he had treated Plaintiff since October 18, 2005, 17 and had seen Plaintiff every three to four months since then. 18 306.) 19 and shoulder. 20 narcotic pain medication, physical therapy, and acupuncture. 21 With respect to Plaintiff s work-related limitations, Dr. Byers opined 22 that Plaintiff could not sit for more than 15 minutes at a time or 23 more than two hours in an eight-hour workday; could not stand for more 24 than 10 minutes at a time or two hours in an eight-hour workday; must 25 walk for 60 minutes each day; could lift or carry more than 10 pounds 26 only rarely and could never lift or carry more than that; could rarely 27 look down or up and could never turn his head right or left or hold 28 his head in a static position; and could never twist, stoop, (AR He stated that plaintiff suffered from chronic pain in his neck (Id.) The prescribed treatments were listed as 9 (Id.) 1 crouch/squat, climb ladders, or climb stairs. (AR 307-08.) Dr. Byers 2 diagnosed Plaintiff as unable to work with permanent/stationary 3 disability. (AR 309.) 4 3. Analysis 5 The ALJ rejected Dr. Byers s opinion because Dr. Byer s [sic] 6 treatment records do not document signs, symptoms and/or laboratory 7 findings or objective observations supportive of the limitations he 8 assesses, [t]he record consistently indicates multiple complaints 9 and minimal objective evidence, and the subjective medical history 10 provided by the claimant appears to be the basis for findings and 11 treatment. 12 (AR 12-13.) These statements do not reach the level of specificity required See Embrey v. Bowen, 13 to reject the opinion of a treating physician. 14 849 F.2d 418, 421 (9th Cir. 1988) ( To say that medical opinions are 15 not supported by sufficient objective findings or are contrary to the 16 preponderant conclusions mandated by the objective findings does not 17 achieve the level of specificity our prior cases have required, even 18 when the objective factors are listed seriatim. ). 19 obligation to set forth her own interpretations of the medical 20 evidence and to explain why they, rather than Dr. Byers s findings, 21 were correct. 22 Cir. 1989) (finding that rejection of treating physician s opinion on 23 ground that it was contrary to clinical findings in record did not 24 specify why the ALJ felt the treating physician s opinion was 25 flawed ); see also Reddick, 157 F.3d at 725 (explaining that ALJ can 26 meet requisite standard for rejecting treating physician s opinion 27 deemed inconsistent with or unsupported by medical evidence by 28 setting out a detailed and thorough summary of the facts and The ALJ had an Id.; see McAllister v. Sullivan, 888 F.2d 599, 602 (9th 10 1 conflicting clinical evidence, stating his interpretation thereof, and 2 making findings ). 3 Moreover, the ALJ s conclusion that Dr. Byers s findings were 4 based on Plaintiff s subjective statements and were unsupported by 5 objective medical evidence is inconsistent with the record. 6 noted that Plaintiff had also been seen by Dr. Montgomery, Dr. Fareed, 7 Dr. Benson, and Dr. Birch, but she failed to elaborate on how, if at 8 all, Dr. Byers s diagnosis conflicted with the diagnoses of the other 9 doctors. (AR 12.) The ALJ Moreover, several of these doctors performed MRIs, 10 which revealed injuries and degenerative disease wholly apart from 11 Plaintiff s claims of pain. 12 of those doctors notes indicates that Dr. Byers s diagnosis was 13 largely consistent with them. 14 (AR 168-75, 270-73.) The Court s review The ALJ also rejected Dr. Byers s opinion because the ALJ found 15 that Plaintiff underwent limited and conservative treatment that was 16 inconsistent with the medical response that would be expected if 17 limitations were as severe as described by Dr. Byers. 18 conclusion was not supported by substantial evidence in the record. 19 Plaintiff was prescribed numerous pain medications, including narcotic 20 medications such as Dilaudid and Percocet, and it is undisputed that 21 he took the medications prescribed to him. 22 Moreover, in 2007 Plaintiff underwent surgery on his shoulder, which 23 failed to fix the problem, and he was told by at least two different 24 doctors that he was not a candidate for further surgery. 25 Plaintiff also received multiple steroid injections to his spine and 26 shoulder and underwent six months of physical therapy. 27 177-80, 207-60.) 28 are insufficient, she did not provide any evidence or examples of what (AR 13.) This (AR 22-23, 149, 306.) (AR 25.) (AR 162-63, To the extent the ALJ would contend these treatments 11 1 type of more substantial medical response would have been expected 2 for Plaintiff s alleged symptoms; her failure to do so was improper. 3 See Merker v. Astrue, No. CV 10-4058 JCG, 2011 WL 2039628, at *7 (C.D. 4 Cal. May 25, 2011). 5 The Commissioner contends the ALJ did not err in rejecting Dr. 6 Byers s assessment because it conflicted with objective medical 7 evidence in the record and because it was based on Plaintiff s 8 subjective complaints, which were not credible. 9 The Commissioner cites several examples in the record of objective (J. Stip. 21-29.) 10 medical evidence that allegedly conflicts with Dr. Byers s assessment 11 and proves Plaintiff is not credible. 12 articulate any of the specific reasons cited by the Commissioner as 13 bases for rejecting Dr. Byers s findings, and this Court does not rely 14 on them. 15 (error for district court to affirm ALJ s credibility decision based 16 on evidence [ALJ] did not discuss and specific facts or reasons ALJ 17 did not assert). 18 19 20 21 22 The ALJ, however, did not See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) Accordingly, the ALJ erred by rejecting Dr. Byers s opinion without providing specific, legitimate reasons for doing so. B. Adverse credibility determination and Plaintiff s ability to perform other jobs Plaintiff contends that the ALJ failed to provide clear and 23 convincing reasons to discredit his subjective symptom testimony. (J. 24 Stip. 9-13.) 25 mischaracterized customer service and effective verbal communication 26 with the public as transferable skills rather than traits, and in 27 any event, Plaintiff did not have those skills. 28 Because the Court finds that the ALJ s rejection of Dr. Byers s Plaintiff further argues that the Vocational Expert 12 (J. Stip. 13-19.) 1 opinion was in error, it is not necessary for it to address the 2 remainder of Plaintiff s arguments. 3 08-0737 RNB, 2009 WL 208088, at *2 (C.D. Cal. July 21, 2009) (finding 4 it unnecessary to address further disputed issues when court found 5 that ALJ failed to properly consider treating doctor s opinion and 6 lay-witness testimony). 7 VI. 8 9 See Negrette v. Astrue, No. EDCV CONCLUSION When there exists error in an administrative determination, the proper course, except in rare circumstances, is to remand to the 10 agency for additional investigation or explanation. 11 537 U.S. 12, 16, 123 S. Ct. 353, 355, 154 L. Ed. 2d 272 (2002) 12 (citations and quotations omitted); Moisa v. Barnhart, 367 F.3d 882, 13 886 (9th Cir. 2004). 14 if enhancement of the record would be useful. 15 379 F.3d 587, 593 (9th Cir. 2004); see Harman v. Apfel, 211 F.3d 1172, 16 1179 (9th Cir. 2000) (explaining that decision whether to remand for 17 further proceedings turns upon the likely utility of such 18 proceedings ). 19 no useful purpose would be served by further administrative 20 proceedings and the record has been fully developed, Lester, 81 F.3d 21 at 834, or when remand would unnecessarily delay the receipt of 22 benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). 23 INS v. Ventura, Remand for further proceedings is appropriate Benecke v. Barnhart, Remand for the payment of benefits is appropriate when Courts may credit as true the opinions of treating physicians 24 when (1) the ALJ has failed to provide legally sufficient reasons for 25 rejecting such evidence, (2) there are no outstanding issues that must 26 be resolved before a determination of disability can be made, and (3) 27 it is clear from the record that the ALJ would be required to find the 28 claimant disabled were such evidence credited. 13 Harman, 211 F.3d at 1 1178 (citations and quotations omitted); see Benecke, 379 F.3d at 594; 2 Connett, 340 F.3d at 876 (recognizing that courts have some 3 flexibility in applying the credit as true rule). 4 Because the ALJ did not properly weigh and address Dr. Byers s 5 opinion, outstanding issues must be resolved before a determination of 6 disability can be made. ORDER 7 8 Harman, 211 F.3d at 1178. Accordingly, IT IS HEREBY ORDERED that (1) the decision of the 9 Commissioner is REVERSED; (2) Plaintiff s request for remand is 10 GRANTED; and (3) this action is REMANDED for further proceedings 11 consistent with this Memorandum Opinion. 12 13 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 14 15 16 17 DATED: December 8, 2011 ______________________________ JEAN P. ROSENBLUTH U.S. Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 14

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