Deborah Lynn Elliott v. Michael J Astrue, No. 2:2011cv00845 - Document 22 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION and ORDER by Magistrate Judge Jean P Rosenbluth, REVERSING COMMISSIONER and REMANDING for FURTHER PROCEEDINGS. (See document for details.) IT IS HEREBY ORDERED that (1) the decision of the Commissioner is REVERSED; (2) Plaintiffs r equest for remand is GRANTED; and (3) this action is REMANDED for further proceedings consistent with this Memorandum Opinion. 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. (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 DEBORAH LYNN ELLIOTT, Plaintiff, 13 v. 14 15 16 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-0845-JPR MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner s final decision 20 denying her application for Social Security Disability Insurance 21 Benefits. The parties filed a Joint Stipulation on November 29, 2011. 22 The Court has taken the Joint Stipulation under submission without 23 oral argument. For the reasons stated below, the Commissioner s 24 decision should be reversed and this matter should be remanded for 25 further proceedings. 26 II. BACKGROUND 27 Plaintiff was born on March 15, 1965. (Administrative Record 28 1 ( AR ) 53.) 2 payable clerk when she was injured on January 10, 2005. 3 326.) 4 She graduated high school and was employed as an accounts She has not worked since April 11, 2005. (AR 247, (AR 327.) On March 29, 2007, Plaintiff protectively filed an application 5 for a period of disability and disability insurance benefits, alleging 6 that she had been unable to work since April 5, 2005, because of pain 7 in her wrists, elbows, and hands. 8 Plaintiff s application was denied initially and on reconsideration, 9 she requested a hearing before an Administrative Law Judge ( ALJ ). (AR 107, 212, 226.) After 10 (AR 105-17.) 11 Plaintiff appeared with counsel and testified on her own behalf. 12 58-66.) 13 testimony was taken from a Medical Expert, a Vocational Expert, and 14 Plaintiff s mother. 15 2010, the ALJ determined that Plaintiff was not disabled. 16 On August 24, 2010, the Appeals Council denied Plaintiff s request for 17 review. 18 III. STANDARD OF REVIEW 19 An initial hearing was held on April 29, 2009, at which (AR A supplemental hearing was held on March 5, 2010, at which (AR 67-104.) (AR 37-40.) In a decision issued on March 30, (AR 44-55.) This action followed. 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. § 404.1520(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 § 404.1520(a)(4)(I). 3 20 If the claimant is not 1 nondisability is made and the claim is denied. § 404.1520(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 established and benefits are awarded. 8 claimant s impairment or combination of impairments does not meet or 9 equal an impairment in the Listing, the fourth step requires the § 404.1520(a)(4)(iii). If the 10 Commissioner to determine whether the claimant has sufficient residual 11 functional capacity ( RFC )1 to perform her past work; if so, the 12 claimant is not disabled and the claim must be denied. 13 § 404.1520(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 she can perform other 19 substantial gainful work in the economy. 20 determination comprises the fifth and final step in the sequential 21 analysis. 22 966 F.2d at 1257. Id. The claimant has the burden of proving that she Drouin, 966 F.2d at 1257. If that happens or if the claimant has no past § 404.1520(a)(4)(iv). That § 404.1520(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 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 April 5, 2005, the onset date of 26 27 28 1 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 her alleged disability. (AR 46.) At step two, the ALJ concluded that 2 Plaintiff had the severe impairments of status post multiple 3 surgeries in both upper extremities, including bilateral carpal tunnel 4 release, right and left flexor pronator origin release, and status 5 post right lateral epicondyle repair, and possible right cubital 6 tunnel syndrome and bilateral carpal tunnel syndrome; major 7 depression, moderate, recurrent; generalized anxiety disorder; and 8 psychological factors affecting medical condition. 9 three, the ALJ determined that Plaintiff s impairments did not meet or (Id.) (AR 47.) At step 10 equal any of the impairments in the Listing. At step four, 11 the ALJ found that Plaintiff retained the RFC to perform a range of 12 light work 2 but was precluded from more than occasionally pushing 13 and/or pulling, due to limitations moving her right elbow. 14 Moreover, the ALJ found that Plaintiff was moderately to markedly 15 limited in her ability to withstand the stress and pressures 16 associated with an eight-hour workday and day-to-day work activity, 17 moderately limited in her ability to understand, remember and carry 18 out an extensive variety of technical and/or complex job instructions, 19 and maintain concentration and attention for at least two-hour 20 increments, slightly limited in her ability to relate and interact 21 with supervisors and co-workers, and deal with the public, and no[t] (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 may involve occasional walking or standing. § 404.1567(a)-(b). 5 1 or only minimal[ly] limit[ed] in her ability to understand, remember 2 and carry out simple one-or-two step job instructions, and handle 3 funds. 4 her past relevant work as an accounts payable clerk. 5 step five, the ALJ found, based on the Vocational Expert s testimony 6 and application of the Medical Vocational Guidelines, that jobs 7 existed in significant numbers in the national economy that Plaintiff 8 could perform. 9 that Plaintiff could perform the work of marker in the retail trade (Id.) The ALJ concluded that Plaintiff was unable to perform (AR 54.) At The ALJ agreed with the Vocational Expert 10 and grader/sorter. 11 Plaintiff was not disabled. 12 V. 13 (AR 53.) (Id.) Accordingly, the ALJ determined that (AR 55.) DISCUSSION Plaintiff contends the ALJ (1) improperly rejected the opinions 14 of her treating and examining physicians, Drs. Kevin Hilton, Frank 15 Minor, Kenneth Fryer, and Mark Montgomery (J. Stip. 4-12); (2) omitted 16 limitations from Plaintiff s RFC and the hypothetical question posed 17 to the Vocational Expert (J. Stip. 17-24); (3) failed to develop the 18 record (J. Stip. 29-31); and (4) improperly rejected Plaintiff s and 19 her mother s testimony (J. Stip. 33-38). 20 21 22 A. Rejection of treating and examining physicians opinions 1. Applicable law Generally, the opinions of treating physicians are afforded more 23 weight than the opinions of nontreating physicians because treating 24 physicians are employed to cure and have a greater opportunity to know 25 and observe the claimant. 26 Cir. 1996). 27 are entitled to greater weight than those of nonexamining physicians. 28 Lester, 81 F.3d at 830. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Moreover, the opinions of examining physicians generally 6 1 The weight given a treating physician s opinion depends on 2 whether it was supported by sufficient medical data and was consistent 3 with other evidence in the record. 4 If a treating physician s opinion was well supported by medically 5 acceptable clinical and laboratory diagnostic techniques and was not 6 inconsistent with the record s other substantial evidence, it should 7 be given controlling weight and should be rejected only for clear and 8 convincing reasons. 9 a treating physician s opinion conflicts with other medical evidence, 10 the ALJ must provide specific and legitimate reasons for discounting 11 the treating opinion. 12 625, 632 (9th Cir. 2007). 13 physician s opinion, the ALJ must provide clear and convincing 14 reasons for rejecting an uncontradicted opinion or specific and 15 legitimate reasons for rejecting a contradicted opinion. 16 F.3d at 830. 17 2. See 20 C.F.R. § 404.1527(d)(2). Lester, 81 F.3d at 830; § 404.1527(d)(2). When Lester, 81 F.3d at 830; Orn v. Astrue, 495 F.3d Likewise, with respect to an examining Lester, 81 Applicable facts 18 In 2003, Plaintiff began experiencing pain in her elbows, 19 forearms, and hands, which was associated with repetitive keying and 20 lifting of files at work. 21 felt severe pain in her right arm while trying to lift some heavy 22 files. 23 (AR 335, 477.) In January 2005, Plaintiff (AR 326.) A number of workers compensation physicians, all orthopedic 24 surgeons, examined or treated Plaintiff. 25 Plaintiff with ulnar neuritis in both elbows, treated her with 26 cortisone injections, referred her to therapy, prescribed surgery, and 27 recommended no repetitive hand motions or fingering. 28 Dr. Minor examined Plaintiff and agreed with Dr. Hilton s diagnosis, 7 Dr. Hilton diagnosed (AR 343, 345.) 1 further diagnosed bilateral lateral epicondylitis and carpal tunnel 2 syndrome, and recommended no grasping or repetitive motions with the 3 hands. 4 recommendation of surgery. (AR 335, 375.) Plaintiff initially declined Dr. Hilton s (AR 478.) 5 Because her initial treatment of cortisone shots and physical 6 therapy did not relieve her pain, Plaintiff eventually underwent a 7 series of surgeries on both arms. 8 Fryer performed a right lateral epicondyle repair and a right carpal 9 tunnel release. (AR 326, 490.) (AR 446-47, 490.) In April 2007, Dr. In November 2007, Dr. Fryer rated 10 Plaintiff temporarily total[ly] disabled. 3 11 2007, Dr. Fryer performed a left carpal tunnel release and a left 12 flexor pronator origin release at the medial epicondyle. 13 490.) 14 origin release at the medial epicondyle. 15 (AR 432.) In December (AR 448-49, In April 2008, Dr. Fryer performed a right flexor pronator (AR 494-95, 490.) During and after this period, Dr. Montgomery examined Plaintiff 16 several times. (AR 477-91.) In October 2008, Dr. Montgomery 17 conducted an Agreed Medical Evaluation4 and found, among other things, 18 that Plaintiff is improved after her surgeries but remains quite 19 symptomatic at the right elbow and that she would benefit from 20 additional surgery. 21 functioning, Dr. Montgomery opined that Plaintiff should be restricted (AR 491.) As to Plaintiff s level of 22 23 24 25 3 In workers compensation parlance, the term temporarily totally disabled means that an individual is totally incapacitated and unable to earn any income during the period when he is recovering from the effects of the injury. Booth v. Barnhart, 181 F. Supp. 2d 1099, 1103 n.2 (C.D. Cal. 2002). 26 4 27 28 In a workers compensation case, an Agreed Medical Evaluator is a physician selected by agreement between the claims administrator, or if none, the employer, and a represented employee to resolve disputed medical issues. 8 Cal. Code Regs. § 1(f). 8 1 to no heavy lifting5 and no repetitive or forceful gripping, 2 twisting, pushing, pulling or manipulating with the hands. (Id.) Finally, in August 2009, Dr. Juliane Tran conducted an orthopedic 3 4 evaluation of Plaintiff as part of her Social Security claim. (AR 5 503-07.) 6 surgeries, but observed that Plaintiff has good strength with manual 7 muscle strength testing. 8 Tran provided a functional assessment that restricted Plaintiff, in 9 pertinent part, from performing activities involving frequent right Dr. Tran noted Plaintiff s medical history, including her (AR 506.) Based on her evaluation, Dr. 10 elbow movements but assigned no restrictions in wrist movement, 11 fingering, or grasping. 12 3. (Id.) Analysis The ALJ credited the opinion and functional assessment of Dr. 13 14 Tran. (AR 53.) In so doing, the ALJ effectively rejected the 15 opinions of Plaintiff s treating and examining physicians, 16 particularly the latest and more restrictive functional assessment 17 provided by Dr. Montgomery after Plaintiff s surgeries. 18 determination was unaccompanied by any explanation that specifically 19 referenced these physicians opinions; instead, the ALJ generally 20 cited Dr. Tran s assessment s supportability with medical signs and 21 laboratory findings, consistency with the record, and [her] areas of 22 specialization. The ALJ s (AR 53.) 23 The ALJ s effective rejection of the treating and examining 24 doctors opinions did not satisfy the Ninth Circuit s requirement that 25 the ALJ provide specific and legitimate reasons before discounting 26 5 27 28 Under workers compensation guidelines, a preclusion from heavy lifting contemplates a loss of approximately half of a worker s preinjury capacity for lifting. Macri v. Chater, 93 F.3d 540, 543-44 (9th Cir. 1996). 9 1 such evidence. Nothing in the ALJ s evaluation specified any defects 2 in the treating and examining doctors opinions so as to justify 3 rejecting them. 4 rejection of medical opinions without explicit findings was legal 5 error). 6 resolve the evidentiary conflict in favor of Dr. Tran supportability 7 with medical signs and findings, consistency with the record, and 8 areas of specialization applied even more to the treating and 9 examining physicians opinions. See Smolen, 80 F.3d at 1286 (ALJ s effective Moreover, the generalized reasons the ALJ did provide to Plaintiff s treating physicians 10 conducted tests on Plaintiff, generally agreed with each other, and 11 were orthopedic specialists, unlike Dr. Tran, who specialized in 12 internal medicine. 13 doctors opinions were entitled to extra weight. 14 633 (finding treating physicians opinions entitled to additional 15 weight based on supportability and consistency with the record on the 16 whole); 20 C.F.R. § 404.1527(d)(3)-(5). 17 In fact, these factors indicate that the treating See Orn, 495 F.3d at The Commissioner contends that for various reasons the ALJ did 18 not err in rejecting the opinions of Plaintiff s physicians (J. Stip. 19 13-15), but the ALJ did not articulate any of those reasons. 20 therefore cannot support the ALJ s evaluation. 21 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (error for district court 22 to affirm ALJ s credibility decision based on evidence [ALJ] did not 23 discuss and specific facts or reasons ALJ did not assert). 24 They See Connett v. The Commissioner alternatively contends that any error by the ALJ 25 in this context was harmless because all of the physicians opinions 26 were consistent with the ALJ s ultimate determination that Plaintiff 27 can perform light work. 28 For example, Dr. Montgomery s functional assessment which posited (J. Stip. 15.) 10 This contention is incorrect. 1 restrictions on repetitive or forceful gripping, twisting, pushing, 2 pulling, and manipulating with the hands was squarely inconsistent 3 with the ALJ s determination that Plaintiff can perform the jobs of 4 marker or grader/sorter, which require frequent or constant 5 handling. 6 186, 1991 WL 674781 (Sorter). 7 See DICOT 209.587-034, 1991 WL 671802 (Marker),6 529.687- Accordingly, the ALJ failed to provide specific and legitimate 8 reasons to reject the treating and examining physicians opinions, and 9 the error was not harmless. 10 B. Assessment of residual functional capacity and hypothetical 11 question, development of the record, and adverse credibility 12 determinations 13 Plaintiff further contends that the ALJ omitted limitations from 14 her RFC and the hypothetical question to the vocational expert, failed 15 to develop the record, and improperly rejected testimony by Plaintiff 16 and her mother. 17 recommended resolution of the first issue, however, it is unnecessary 18 to resolve these remaining arguments. 19 EDCV 08-0737 RNB, 2009 WL 2208088, at *2 (C.D. Cal. July 21, 2009) 20 (finding it unnecessary to address further disputed issues when court 21 found that ALJ failed to properly consider treating doctor s opinion 22 and laywitness testimony). 23 reevaluate Plaintiff s RFC after reconsidering the treating doctors 24 25 26 27 28 (J. Stip. 17-24, 29-31, 33-38.) In light of the See Negrette v. Astrue, No. On remand, the ALJ will necessarily 6 The description of marker in the Dictionary of Occupational Titles indicates that the handling of body members, hand tools, and/or special devices to work, move, or carry objects or materials necessary to do the job is not significant. See DICOT App. B, 1991 WL 688701 (4th ed. 1991) (indicating that 7 in sixth spot of identifying number for the job refers to handling of certain types of things ). The overall job description, however, indicates that handling is frequently involved. 11 1 opinions and will base any credibility determinations on the testimony 2 at a new hearing. 3 VI. 4 CONCLUSION When error exists in an administrative determination, the proper 5 course, except in rare circumstances, is to remand to the agency for 6 additional investigation or explanation. 7 12, 16, 123 S. Ct. 353, 355, 154 L. Ed. 2d 272 (2002) (citations and 8 quotation marks omitted); Moisa v. Barnhart, 367 F.3d 882, 886 (9th 9 Cir. 2004). INS v. Ventura, 537 U.S. Remand for further proceedings is appropriate if 10 enhancement of the record would be useful. 11 F.3d 587, 593 (9th Cir. 2004); see Harman v. Apfel, 211 F.3d 1172, 12 1179 (9th Cir. 2000) (explaining that decision whether to remand for 13 further proceedings turns upon the likely utility of such 14 proceedings ). 15 no useful purpose would be served by further administrative 16 proceedings and the record has been fully developed, Lester, 81 F.3d 17 at 834, or when remand would unnecessarily delay the receipt of 18 benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). 19 Benecke v. Barnhart, 379 Remand for the payment of benefits is appropriate when Courts may credit as true the opinions of treating or examining 20 physicians when (1) the ALJ has failed to provide legally sufficient 21 reasons for rejecting such evidence, (2) there are no outstanding 22 issues that must be resolved before a determination of disability can 23 be made, and (3) it is clear from the record that the ALJ would be 24 required to find the claimant disabled were such evidence credited. 25 Harman, 211 F.3d at 1178 (citations and quotation marks omitted); see 26 Benecke, 379 F.3d at 594; Connett, 340 F.3d at 876 (recognizing that 27 courts have some flexibility in applying the credit as true rule). 28 Because the ALJ did not properly weigh and address the treating 12 1 and examining physicians opinions, outstanding issues must be 2 resolved before a determination of disability can be made. 3 211 F.3d at 1178. ORDER 4 5 Harman, Accordingly, IT IS HEREBY ORDERED that (1) the decision of the 6 Commissioner is REVERSED; (2) Plaintiff s request for remand is 7 GRANTED; and (3) this action is REMANDED for further proceedings 8 consistent with this Memorandum Opinion. 9 10 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. 11 12 13 14 DATED: December 21, 2011 ______________________________ JEAN P. ROSENBLUTH U.S. Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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