Rosa E Trujillo v. Michael J Astrue, No. 2:2011cv01220 - Document 20 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with (1) the 2008 prior remand order and Stipulation for Remand and (2) this decision. See order for further details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROSA E. TRUJILLO, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 11-1220 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Rosa E. Trujillo ( Plaintiff ) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration (hereinafter the Commissioner or the Agency ) denying 24 her 25 Supplemental Security Income ( SSI ). 26 remand. 27 jurisdiction of the undersigned United States Magistrate Judge. For the 28 applications for Disability Insurance Benefits ( DIB ) and Alternatively, she asks for a The parties consented, pursuant to 28 U.S.C. § 636(c), to the 1 reasons stated below, the decision of the Commissioner is REVERSED and 2 REMANDED for further proceedings. 3 4 II. 5 PROCEDURAL HISTORY 6 7 Plaintiff initially requested benefits on May 16, 2005, alleging 8 a disability onset date of August 1, 2000 due to injuries to her back, 9 neck, and discs; tendonitis in both hands and arms; glaucoma; and 10 blindness in right eye. 11 Plaintiff 12 ( ALJ ), which was held on February 22, 2007. 13 was not represented by counsel at the hearing. 14 7, 2007, the ALJ issued a decision denying benefits. 15 Plaintiff s request for appeal was denied by the Appeals Council on May 16 25, 2007, making the ALJ s decision the final decision for the Agency. 17 (AR 9). requested a (AR 100). hearing After the Agency denied benefits, before an Administrative (AR 608-10). (AR 610-11). Law Judge Plaintiff On March (AR 16-29). 18 19 Subsequently, Plaintiff filed action in federal court, and, 20 following a Stipulation for Remand, the Court remanded the action. (AR 21 653-57). 22 Plaintiff appeared with counsel and testified. (AR 728-45). Again, the 23 ALJ issued an opinion denying benefits on June 26, 2009. 24 On October 30, 2010, the Appeals Council declined jurisdiction, making 25 the ALJ s most recent opinion the final decision of the Agency. 26 627). On May 9, 2009, the ALJ conducted a second hearing where (AR 634-46). Plaintiff then filed this second action in federal court. 27 28 2 (AR 1 III. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must demonstrate 5 a medically determinable physical or mental impairment that prevents him 6 from engaging in substantial gainful activity1 and that is expected to 7 result in death or to last for a continuous period of at least twelve 8 months. 9 42 U.S.C. § 423(d)(1)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant 10 incapable of performing the work he previously performed and incapable 11 of performing any other substantial gainful employment that exists in 12 the national economy. 13 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 14 15 16 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 17 18 (1) Is the claimant presently engaged in substantial gainful 19 activity? 20 If not, proceed to step two. 21 (2) Is the If so, the claimant is found not disabled. claimant s impairment 22 claimant is found not disabled. 23 severe? If not, the three. 24 (3) 25 If so, proceed to step Does the claimant s impairment meet or equal one of list of specific impairments described in 20 C.F.R. Part 404, 26 27 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. §§ 404.1510, 416.910. 3 1 Subpart P, Appendix 1? 2 disabled. 3 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? 4 so, the claimant is found not disabled. 5 If to step five. 6 (5) If not, proceed Is the claimant able to do any other work? 7 claimant is found disabled. 8 If not, the If so, the claimant is found not disabled. 9 10 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 11 949, 12 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 13 14 The claimant has the burden of proof at steps one through four, and 15 the Commissioner has the burden of proof at step five. Bustamante, 262 16 F.3d at 953-54. 17 establishing an inability to perform past work, the Commissioner must 18 show that the claimant can perform some other work that exists in 19 significant numbers in the national economy, taking into account the 20 claimant s residual functional capacity ( RFC ),2 age, education, and 21 work experience. 22 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 23 do so by the testimony of a vocational expert or by reference to the 24 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 25 P, Appendix 2 (commonly known as the Grids ). If, at step four, the claimant meets his burden of Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner may Osenbrock v. Apfel, 240 26 27 2 Residual functional capacity is what [one] can still do despite [his] limitations and represents an assessment based upon all 28 of the relevant evidence. 20 C.F.R. §§ 404.1545(a), 416.945(a). 4 1 F.3d 1157, 1162 (9th Cir. 2001). 2 (strength-related) 3 inapplicable and the ALJ must take the testimony of a vocational expert. 4 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). and When a claimant has both exertional nonexertional limitations, the Grids are 5 6 III. 7 STANDARD OF REVIEW 8 9 Under 42 U.S.C. § 405(g), a district court may review the 10 Commissioner s decision to deny benefits. The court may set aside the 11 Commissioner s decision when the ALJ s findings are based on legal error 12 or are not supported by substantial evidence in the record as a whole. 13 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 14 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 15 16 Substantial evidence is more than a scintilla, but less than a 17 preponderance. 18 which a reasonable person might accept as adequate to support a 19 conclusion. 20 a finding, the court must consider the record as a whole, weighing 21 both 22 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 23 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 24 reasonably support either affirming or reversing that conclusion, the 25 court may not substitute its judgment for that of the Commissioner. 26 Reddick, 157 F.3d at 720-21. 27 \\ 28 \\ evidence Reddick, 157 F.3d at 720. Id. It is relevant evidence To determine whether substantial evidence supports that supports and evidence 5 that detracts from the If the evidence can 1 IV. 2 DISCUSSION 3 4 5 A. The ALJ Failed To Properly Consider Treating Physician Evidence When He Evaluated Plaintiff s Fibromyalgia 6 7 An ALJ must afford the greatest weight to the opinion of the 8 claimant s treating physician. The opinions of treating physicians are 9 entitled to special weight because the treating physician is hired to 10 cure and has a better opportunity to know and observe the claimant as 11 an individual. 12 Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002); 13 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 14 doctor s opinion is not contradicted by another doctor, it may be 15 rejected only for clear and convincing reasons. 16 F.3d 821, 830 (9th Cir. 1995) (as amended). 17 physician s opinion is contradicted by another doctor, the ALJ may not 18 reject this opinion without providing specific, legitimate reasons, 19 supported by substantial evidence in the record. 20 also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Ryan v. Comm r 21 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Magallanes Where the treating Lester v. Chater, 81 Even if the treating Id. at 830-31; see 22 23 Further, when considering a potential disability caused by 24 fibromyalgia, the Ninth Circuit recognized that objective findings do 25 not establish the presence or absence of fibromyalgia. 26 Northrop Grumman Corp. Welfare Plan, 370 F.3d 869, 872 (9th Cir. 2004). 27 Specifically, fibromyalgia s cause or causes are unknown, there is no 28 cure, and, of greatest importance to disability law, its symptoms are 6 Jordan v. 1 entirely subjective. There are no laboratory tests for the presence or 2 severity of fibromyalgia. 3 only be confirmed by a specific test where a patient reports pain in 4 five parts of the body and when at least eleven of eighteen points cause 5 pain when palpated by an examiner s thumb. 6 Massanari, 261 F.3d 853, 855 (9th Cir. 2001)). Id. Instead, a fibromyalgia diagnosis can Id. (citing Rollins v. 7 8 9 Where a treating physician s opinion is contradicted the [ALJ] must determine credibility and resolve the conflict. Valentine v. 10 Comm r, 574 F.3d 685, 692 (9th Cir. 2009) (quoting Lester v. Chater, 81 11 F.3d 821, 830 (9th Cir. 1995)). 12 treating physician in favor of a conflicting opinion . . . an ALJ must 13 make findings setting forth specific, legitimate reasons for doing so 14 that are based on substantial evidence in the record. 15 quotation marks omitted). 16 conclusions. 17 they, rather than the [physician s] are correct. 18 F.3d 19 Additionally, in order for the ALJ to properly reject a treating 20 physician s opinion relating to fibromyalgia, the ALJ must first attempt 21 to recontact the treating physician to receive clarification of any 22 conflict in the evidence. 625, However, to reject the opinion of a Id. (internal The ALJ must do more than offer his He must set forth his own interpretations and explain why 632 (9th Cir. 2007) (internal Orn v. Astrue, 495 citation omitted). SSR 99-2p at *6. 23 24 Here, Dr. Ho clearly diagnosed and treated Plaintiff for over five 25 years for fibromyalgia. (AR 458-73, 710-24). 26 on clinical findings such as the presence of numerous fibromyalgia 27 tender points, sleep disturbances, and muscle spasms. 28 Ho completed a Fibromyalgia Questionnaire concluding that Plaintiff 7 He based his diagnosis (AR 541). Dr. 1 could be on her feet for only two hours in a workday, and that she would 2 be incapable of performing low stress jobs because of her pain and 3 likely prolonged absences from the work place. 4 length and frequency of the treating relationship with Dr. Ho, Dr. Ho's 5 clinical findings, and Dr. Ho's repeated confirmation of a fibromyalgia 6 diagnosis, 7 fibromyalgia as a naked diagnosis (AR 641) without support is simply 8 belied by the record. the ALJ's characterization of (AR 542-45). Dr. Ho s Given the diagnosis of 9 10 Further, the ALJ erred by discounting Dr. Ho s opinion on the 11 grounds that Dr. Ho relied on Plaintiff s subjective complaints of pain. 12 (Id.). 13 for diagnosing fibromyalgia. 14 (9th Cir. 2004). 15 provide sufficient treatment to support Plaintiff s complaints, the 16 record shows that Dr. Ho provided substantial treatment. 17 Dr how submitted reports showing extensive testing (AR 458-59, 463-65, 18 711-15); record of medications including Vicodin, Effexor, Naproxen, 19 Tramadol, Prevacid, Prilosec, Trazodone (AR 459-69); and physical 20 therapy treatment. 21 whose opinion the ALJ relied upon to determine Plaintiff s RFC, did not 22 reject Dr. Ho s diagnosis of fibromyalgia. 23 reasons provided by the ALJ to reject Dr. Ho s diagnosis of fibromyalgia 24 are not sufficient to meet his burden of specific, legitimate reasons 25 supported by substantial evidence. A patient s subjective report of pain and symptoms is paramount Benecke v. Barnhart, 379 F.3d 587, 590 Contrary to the ALJ s assertion that Dr. Ho failed to (AR 458). For example, Additionally, even Dr. Sourehnissani, 26 27 28 8 (AR 693). Therefore, the 1 C. The ALJ Failed To Provide Clear And Convincing Reasons In Rejecting Plaintiff s Pain Testimony 2 3 4 Unless there is affirmative evidence showing that the plaintiff is 5 malingering, the ALJ s reasons for rejecting a plaintiff s testimony 6 must be clear and convincing. 7 discredit a plaintiff s testimony solely because the degree of pain 8 alleged by the plaintiff is not supported by objective medical evidence. 9 Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991). Lester, 81 F.3d at 834. An ALJ may not Moreover, 10 in cases involving fibromyalgia, when additional information is needed 11 to assess the credibility of the individual s statements about symptoms 12 and their effects, the [ALJ] must make every reasonable effort to obtain 13 available information that could shed light on the credibility of the 14 individual s statements. SSR 99-2p at *7. 15 16 Here, the ALJ rejected Plaintiff s subjective complaints because 17 they were out of proportion to the objective clinical findings and 18 there was no evidence of sever disuse muscle atrophy that would be 19 compatible with her alleged inactivity and inability to function for the 20 past 9 years. 21 "conservative" 22 testimony. 23 record 24 complaints. and (AR 644). treatment (Id.). are Additionally, the ALJ claimed that the record was inconsistent with Plaintiff's These reasons are, again, undermined by the actual not legitimate reasons for rejecting Plaintiff s 25 26 First, the ALJ s assertion that Plaintiff s complaints were out of 27 proportion to her treatment record is unfounded. 28 objective tests for diagnosing fibromyalgia, at least one doctor, Dr. 9 While there are no 1 Ho, performed a trigger point test and confirmed fibromyalgia. Jordan, 2 370 F.3d at 872. 3 records documenting Plaintiff s pain and suffering. (AR 458-59, 463-65, 4 711-15). This medical evidence is consistent, in fact, with Plaintiff's 5 testimony. As discussed above, Dr. Ho also submitted numerous 6 7 Second, the absence of muscular atrophy is not inconsistent with 8 Plaintiff s testimony because she admitted some ability to move, despite 9 her pain. (AR 736-38); Jordan, 370 F.3d at 594 ( [O]ne does not need 10 to be utterly incapacitated in order to be disabled. ) (internal 11 citation omitted). 12 treatment as not aggressive is inaccurate. 13 of strong medications, taken consistently for many years and attended 14 physical therapy at least twice a week. 15 there is no surgery or other known cure for fibromyalgia, this degree 16 of treatment qualifies as substantial treatment. 17 failed to provide legitimate clear and convincing reasons for rejecting 18 Plaintiff s pain testimony. Third, the ALJ s characterization of Plaintiff s Plaintiff has a long list (AR 710-15, 738). Because Therefore, the ALJ 19 20 D. The ALJ Failed To Provide Reasons Germane To The Witness For Rejecting Lay Testimony 21 22 23 An ALJ must consider lay testimony relating to a plaintiff s 24 alleged disability. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 25 2009). 26 reasons that are germane to each witness. 27 454 F.3d 1050, 1054 (9th Cir. 2006). 28 must also carefully consider third-party information because such If an ALJ rejects lay testimony, he must provide specific 10 Id. (citing Stout v. Comm r, In cases of fibromyalgia, an ALJ 1 sources help to assess an individual s ability to function on a day-to- 2 day basis and to depict the individual s capacities over a period of 3 time. SSR 99-2p at *8. 4 5 Here, the ALJ erred because he did not carefully consider third 6 party information when he failed to address Plaintiff's daughter s 7 written statement. Further, although the ALJ recognized the daughter s 8 testimony, his reason for rejecting it was not germane to the witness. 9 Bruce, 557 F.3d at 1115. Merely asserting that the daughter s 10 "subjective statements that Plaintiff is incapable of functioning are 11 not corroborated by the objective medical evidence" is not a reason 12 germane to the witness to reject such testimony. 13 cannot discount the daughter's opinion on the grounds that it is not 14 corroborated by objective medical evidence, because fibromyalgia does 15 not require the existence of objective medical evidence. 16 F.3d at 382. 17 lay opinion. Furthermore, the ALJ See Jordan, Therefore, the ALJ improperly discounted the daughter s 18 19 E. The ALJ Failed To Provide Specific And Legitimate Reasons For Rejecting Other Treating Physician Evidence 20 21 22 The ALJ failed to provide specific, legitimate reasons for 23 rejecting Dr. Gromis opinion. Dr. Gromis diagnosed Plaintiff with 24 musculoligamentous strain of her lumbar and cervical spine, and a 3-4 25 millimeter protrusion in both her lumbar and cervical spine. 26 331). 27 from heavy lifting (no lifting over 10 pounds), repeated bending and 28 stooping . . . . (AR 296, According to Dr. Gromis, Plaintiff s limitations precluded her (AR 298). 11 1 In his most recent decision, the ALJ discounted Dr. Gromis opinion 2 by merely stating it has already been addressed and discounted in the 3 prior decision. 4 Dr. Gromis opinion because it conflicted with State Agency examiner Dr. 5 Workman (AR 298, 412) and objective imaging testing shows only mild 6 abnormality, the claimant has never been advised to have any spinal 7 surgery, and objective functionality testing, such as range of motion 8 and straight leg testing, do not indicate any acute abnormality. 9 24). 10 (AR 639). In the prior decision, the ALJ discounted (AR However, the ALJ s reasons are not an accurate reflection of the record. 11 12 MRI s of Plaintiff s lumbar and cervical spine support Dr. Gromis s 13 conclusions, as she was found in 2005 to have a 3 to 4 mm. posterior 14 disc protrusion, consistent with a disc herniation. 15 Further, while Plaintiff did not have major back surgery, the record 16 shows substantial treatment including lumbar facet block injections, 17 epidural injections, radio frequency decompression neurolysis, and 18 prescription pain medication. 19 ALJ s assertions, Dr. Gromis s examination revealed decreased cervical 20 spine range of motion and decreased lumbar spine range of motion. 21 297). Therefore, the ALJ s reasons for discounting Dr. Gromis opinion 22 were not specific and legitimate. (AR 178-206). (AR 176-77). Moreover, contrary to the (AR 23 24 Second, the ALJ failed to provide specific, legitimate reasons for 25 rejecting Dr. Curtis s psychiatric opinion. 26 [Plaintiff s] psychological fatigue, impaired concentration and an 27 associated inability to relate to people without becoming readily 28 overwhelmed may all add up to an outcome wherein [she] would not be able 12 Dr. Curtis concluded that 1 to sustain employment. . . . 2 dismissing Dr. Curtis opinion were not legitimate. Specifically, while 3 the ALJ asserted that Dr. Curtis only found one area of slight-to- 4 moderate functional limitations (AR 25), the record shows that Dr. 5 Curtis found three areas of functional limitations. (AR 240). Further, 6 the ALJ s view that Dr. Curtis actually believes [Plaintiff] can work 7 (AR 25) is not supported by the record. 8 that Plaintiff 9 foreseeable future without providing reasons for such an assertion. 10 However, the gravamen of Dr. Curtis opinion reflected substantial 11 limitations and the ALJ failed to address those findings either in 12 rejecting Dr. Curtis opinion or in Plaintiff's RFC. 13 is required. would be able (AR 242-43). The ALJ s reasons for Dr. Curtis merely hypothesized to return to the work within the As such, remand 14 F. 15 The ALJ Disregarded The Express Directions Of The 16 Remand Order By Failing To Reevaluate Plaintiff's 17 RFC 18 In the remand order3 dated May 6, 2008, the district court's order 19 20 specifically stated "It is hereby ordered . . . that this case is 21 remanded to the Commissioner of Social Security for further proceedings 22 consistent with the Stipulation for Remand . . ." 23 Stipulation for Remand, signed by counsel for each party, the parties 24 agreed that "Upon remand to an Administrative Law Judge, the claimant's 25 impairments including her visual problem should be fully addressed. The (AR 654). In the 26 3 The Court notes that this was a stipulated remand, i.e., the Commissioner's own counsel drafted the language of the stipulation and 28 must have believed that these deficiencies needed to be corrected on remand. 27 13 1 claimant's credibility and residual functional capacity should be 2 reevaluated. 3 relevant 4 vocational expert evidence should be obtained, if warranted." (AR 656) 5 (emphasis 6 Stipulation for Remand by reference, the ALJ was required to follow the 7 instructions of the Stipulation for Remand. work The issue of whether the claimant can perform her past or added). other jobs Because should the be considered. Court's Order Supplemental incorporated the 8 9 Instead, the ALJ specifically disregarded these instructions. For 10 example, the ALJ stated: "I note that neither the District Court nor the 11 Appeals Council objected by [sic] my analysis of the objective medical 12 record nor the residual functional capacity found . . . Consequently, 13 I incorporate by reference my prior decision of March 7, 2007." 14 639). 15 Stipulation for Remand. (AR This statement is directly contrary to the instructions of the 16 17 The ALJ failed to reevaluate Plaintiff's RFC and credibility and 18 thus did not comply with the Remand Order. 19 F. Supp. 2d 1199 (C.D. Cal. 2005), the court observed that the Agency 20 is not free to disregard its marching orders on remand[.] Id. at 1214. 21 [T]he district 22 instructions concerning the scope of the remand, the evidence to be 23 adduced, and the [] issues to be addressed . . . [d]eviation from the 24 court s remand order in the subsequent administrative proceedings is 25 itself legal error, subject to reversal on further judicial review. 26 Id. (quoting Sullivan v. Hudson, 490 U.S. 877, 886, 109 S. Ct. 2248, 104 27 L. Ed. 2d 941 (1989)). Because the ALJ committed legal error by failing 28 to follow the remand order of the district court, remand is again court s remand order 14 In Ischay v. Barnhart, 383 will often include detailed 1 required. Due to the ALJ's failure to follow the specific directives 2 of the Court's prior remand order, the Court ORDERS that the case be 3 assigned to a different Administrative Law Judge following this remand 4 order.4 5 V. 6 CONCLUSION 7 8 Consistent with the foregoing, and pursuant to sentence four of 42 9 U.S.C. § 405(g),5 IT IS ORDERED that judgment be entered REVERSING the 10 decision of the Commissioner and REMANDING this matter for further 11 proceedings 12 Stipulation for Remand and (2) this decision. 13 that the Clerk of the Court serve copies of this Order and the Judgment 14 on counsel for both parties. consistent with (1) the 2008 prior remand order and IT IS FURTHER ORDERED 15 16 DATED: November 22, 2011. 17 18 /S/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 19 20 21 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED TO 22 BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR 23 LEXIS. 24 4 Because the Court finds remand is required on the issues 25 discussed above, it is unnecessary to reach Plaintiff s remaining arguments. 26 5 This sentence provides: The [district] court shall have power 27 to enter, upon the pleadings and transcript of the record, a judgment 28 affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 15

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