Joan Daniels v. Michael J Astrue, No. 2:2011cv03880 - Document 19 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JOAN DANIELS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) ) Defendant. ) ___________________________________) NO. CV 11-3880-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on May 13, 2011, seeking review of 26 the Commissioner s denial of disability benefits. The parties filed a 27 consent to proceed before a United States Magistrate Judge on 28 June 9, 2011. Plaintiff filed a motion for summary judgment on 1 October 11, 2011. Defendant filed a cross-motion for summary judgment 2 on December 12, 2011. 3 submission without oral argument. 4 May 17, 2011. The Court has taken both motions under See L.R. 7-15; Order, filed 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 Plaintiff asserts disability since November 7, 2001, based on 9 alleged depression, pain, and spinal impairments following a work- 10 related injury (Administrative Record ( A.R. ) 116, 142-44, 158-59). 11 Medical records show that Plaintiff received treatment from Dr. Jon 12 Greenfield, a workers compensation physician and orthopedic surgeon, 13 from February 4, 2002 through at least May 12, 2005 (A.R. 192-202, 14 250-263, 266-74, 278-297). 15 various times with cervical disc disease and chronic neck and back 16 pain (A.R. 250, 278).1 17 problems as so limiting as to preclude Plaintiff from returning to her 18 previous work (A.R. 250-58, 260). Dr. Greenfield diagnosed Plaintiff at Dr. Greenfield regarded Plaintiff s orthopedic 19 20 In 2007, the Administrative Law Judge ( ALJ ) deemed Plaintiff 21 not disabled and denied benefits (A.R. 103-10). The ALJ found that 22 Plaintiff suffered from severe chronic neck and back pain, but 23 24 25 26 27 28 1 A February 9, 2002 MRI of Plaintiff s cervical spine showed significant disc disease in the cervical spine, significant right-side foraminal narrowing at C4-C5 with some mild flattening of the cord and stenosis, disc bulge at C5-C6, and left paracentral disc bulge at C6-C7 with mild left-sided foraminal narrowing (A.R. 242-43). A March 4, 2002 needle electromyography study showed no evidence of radiculopathy (A.R. 244-46). An August 19, 2005 x-ray of Plaintiff s lumbar spine showed mild disc degeneration at L4-L5 and facet joint arthritis at L5-S1 (A.R. 219). 1 retained the residual functional capacity to perform a full range of 2 sedentary work (A.R. 105-09). 3 Rule 201.28), the ALJ concluded that there existed jobs that Plaintiff 4 could perform (A.R. 109). Applying the Grids (Medical Vocational 5 6 In 2008, the Appeals Council remanded the case to the ALJ (A.R. 7 137-39). The Appeals Council stated, inter alia, that the ALJ s 8 decision did not contain an adequate evaluation of Dr. Greenfield s 9 treating source opinion that Plaintiff should not look up, down, or 10 to the right or left for prolonged periods of time, and could work 11 above shoulder height for only ten minutes every hour and at shoulder 12 height only twenty minutes every hour (A.R. 137-38 (referencing Dr. 13 Greenfield s June 25, 2002 Final Permanent and Stationary Report at 14 A.R. 201); see also A.R. 261 (Dr. Greenfield s April 25, 2003 report 15 noting similar limitations)).2 16 17 On remand, the ALJ acknowledged that the Appeals Council had 18 directed the ALJ to give further consideration to treating source 19 opinions (A.R. 24). Nevertheless, the ALJ again denied benefits 20 21 22 23 24 25 26 27 28 2 State agency physician, Dr. Chien, reviewed Plaintiff s treatment records and completed a Physical Residual Functional Capacity Assessment form dated September 7, 2005 (A.R. 222-31). Dr. Chien diagnosed Plaintiff with chronic cervical and lumbosacral strain (A.R. 222). While Dr. Chien checked boxes indicating that Plaintiff could perform the physical demands of medium work (A.R. 223), Dr. Chien opined that Plaintiff should avoid repetitive above shoulder level reaching (A.R. 225). Consultative internal medicine examiner, Dr. Sourehnissani, earlier had examined Plaintiff and provided a report dated August 19, 2005 (A.R. 213-18). Dr. Sourehnissani, who did not review any of Plaintiff s medical records, opined that Plaintiff could perform medium work with no limitations (A.R. 217). 2 1 without expressly addressing Dr. Greenfield s opinions regarding 2 Plaintiff s work limitations (A.R. 24-33).3 3 Appeals Council denied review (A.R. 13-15). This time, however, the 4 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. section 405(g), this Court reviews the 8 Administration s decision to determine if: (1) the Administration s 9 findings are supported by substantial evidence; and (2) the 10 Administration used correct legal standards. See Carmickle v. 11 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 12 499 F.3d 1071, 1074 (9th Cir. 2007). 13 relevant evidence as a reasonable mind might accept as adequate to 14 support a conclusion. 15 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 16 454 F.3d 1063, 1067 (9th Cir. 2006). 17 /// 18 /// Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 19 20 21 22 23 24 25 26 27 28 3 Specifically, the ALJ found Plaintiff suffered from severe degenerative disc disease of the cervical spine and adjustment disorder with mixed anxiety and depressed mood (A.R. 27). The ALJ found Plaintiff capable of performing light work with no physical limitations, and adopted testimony of a vocational expert suggesting that Plaintiff could perform particular jobs (A.R. 28-33). In so doing, the ALJ did not explain the weight given to the medical source opinions concerning Plaintiff s physical ailments (Id.). The ALJ acknowledged Dr. Greenfield s progress reports while finding Plaintiff s impairments severe, but never mentioned Dr. Greenfield s specific opinions regarding work limitations (A.R. 27-33). 3 DISCUSSION 1 2 Plaintiff argues, inter alia, that the ALJ failed adequately to 3 4 consider how Plaintiff s spine impairment may have affected her 5 residual functional capacity. 6 have accounted for Dr. Greenfield s specific opinions regarding 7 Plaintiff s work limitations. The Court agrees that the ALJ should 8 9 A treating physician s conclusions must be given substantial 10 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 11 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ( the ALJ must 12 give sufficient weight to the subjective aspects of a doctor s opinion 13 . . . 14 physician ) (citation omitted); see also Orn v. Astrue, 495 F.3d 625, 15 631-33 (9th Cir. 2007) (discussing deference owed to treating 16 physician opinions); see generally 20 C.F.R. ยงยง 404.1527(d)(2), 17 416.927(d)(2). 18 contradicted,4 if the ALJ wishes to disregard the opinion[s] of the 19 treating physician he . . . must make findings setting forth specific, 20 legitimate reasons for doing so that are based on substantial evidence 21 in the record. 22 (citation, quotations and brackets omitted); see Rodriguez v. Bowen, 23 876 F.2d at 762 ( The ALJ may disregard the treating physician s 24 opinion, but only by setting forth specific, legitimate reasons for 25 doing so, and this decision must itself be based on substantial This is especially true when the opinion is that of a treating Even where the treating physician s opinions are Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) 26 4 27 28 Rejection of an uncontradicted opinion of a treating physician requires a statement of clear and convincing reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 4 1 evidence ) (citation and quotations omitted). 2 to acknowledge Dr. Greenfield s specific opinions was in error. 3 Lingenfelter v. Astrue, 504 F.3d 1028, 1045 (9th Cir. 2007) ( The 4 decision of an ALJ fails. . . when the ALJ completely ignores or 5 neglects to mention a treating physician s medical opinion that is 6 relevant to the medical evidence being discussed. ) (citations 7 omitted); Carter v. Astrue, 308 Fed. App x 75, 76 (9th Cir. Jan. 8, 8 2009) (ALJ s failure to mention treating physician s findings was 9 erroneous in light of the ALJ s obligation to explain why significant 10 Here, the ALJ s failure See probative evidence has been rejected) (citations omitted).5 11 12 The ALJ s error in failing to account for Dr. Greenfield s 13 specific opinions may have been material. The vocational expert did 14 not offer an opinion concerning whether the upper extremity 15 limitations Dr. Greenfield found would affect Plaintiff s ability to 16 perform the jobs the vocational expert identified. 17 (vocational expert testifying in response to hypothetical concerning 18 person suffering only mental limitations). 19 of this case suggest that further administrative review is needed to 20 determine whether the ALJ s failure properly to consider Dr. 21 Greenfield s opinions prejudiced Plaintiff, remand is appropriate. 22 See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see also INS 23 v. Ventura, 537 U.S. 12, 16 (2002) 24 administrative determination, the proper course, except in rare 25 circumstances, is to remand to the agency for additional investigation See A.R. 547-50 Because the circumstances (When a court reverses an 26 27 28 5 The Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a). 5 1 or explanation. ) (citations and quotations omitted). Remand is 2 proper where, as here, additional administrative proceedings could 3 remedy the defects in the decision. 4 599, 603 (9th Cir. 1989); see generally Kail v. Heckler, 722 F.2d 5 1496, 1497 (9th Cir. 1984).6 6 /// 7 /// 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// McAllister v. Sullivan, 888 F.2d 15 16 17 6 18 19 20 21 22 23 24 25 26 27 28 The Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ( Harman ) does not compel a reversal rather than a remand of the present case. In Harman, the Ninth Circuit stated that improperly rejected medical opinion evidence should be credited and an immediate award of benefits directed where (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Harman at 1178 (citations and quotations omitted). Assuming, arguendo, the Harman holding survives the Supreme Court s decision in INS v. Ventura, 537 U.S. at 16, the Harman holding does not direct reversal of the present case. It is not clear that the ALJ would be required to find Plaintiff disabled for the entire period of claimed disability, even if Dr. Greenfield s opinions were fully credited. As noted above, there is no vocational expert evidence concerning whether there exists work that could be performed by a person having the limitations Dr. Greenfield found to exist. 6 1 CONCLUSION 2 3 For all of the foregoing reasons,7 Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: December 14, 2011. 10 11 12 ______________/S/__________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 7 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the payment of benefits would not be appropriate at this time. 7

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