Tsegabu Bekele Hailu v. Michael J Astrue, No. 2:2011cv04774 - Document 19 (C.D. Cal. 2012)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton: For reasons set forth, the matter will be remanded for further hearing consistent with this Memorandum Opinion. (See order for details) (rh)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 TSEGABU BEKELE HAILU, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-04774-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. The parties have filed the 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) gave legally 1 sufficient reasons for rejecting the opinions of Plaintiff s 2 treating physicians; 3 2. 4 5 3. ALJ gave legally sufficient reasons for Whether the ALJ properly evaluated Plaintiff s diabetes mellitus; 4. 8 9 the rejecting Plaintiff s testimony; 6 7 Whether Whether the ALJ erred in failing to consider Plaintiff s glaucoma, and also his gout, to be severe; 5. Whether the ALJ erred, at Step 5 of the sequential 10 evaluation, in finding that other work exists in the economy 11 in significant numbers that Plaintiff can perform; 12 6. 13 14 sequential evaluation process; and 7. 15 16 Whether the ALJ made sufficient findings at Step 3 of the Whether the ALJ was required to evaluate this claim as a borderline case. (JS at 3-4.) 17 18 This Memorandum Opinion will constitute the Court s findings of 19 fact and conclusions of law. After reviewing the matter, the Court 20 concludes 21 Commissioner must be reversed and the matter remanded. that for the reasons set forth, the decision of the 22 23 24 I 25 THE ALJ FAILED TO COMPLY WITH THE ORDER OF REMAND, AND THE ORDER OF 26 APPEALS COUNCIL REMANDING CASE TO ADMINISTRATIVE LAW JUDGE, IN HER 27 EVALUATION OF THE OPINION OF PLAINTIFF S TREATING PHYSICIANS 28 Pursuant to a Stipulation to 2 Voluntary Remand Pursuant to 1 Sentence Four of 42 U.S.C. § 405(g) (AR 469-70), this Court on June 2 15, 2009 ordered the matter remanded to the Commissioner of Social 3 Security for further proceedings consistent with the terms of the 4 Stipulation to Remand. (AR 471.) 5 Thereafter, on December 17, 2009, the Appeals Council issued its 6 Order Remanding Case to Administrative Law Judge, which incorporated 7 this Court s Order of Remand, and provided very specific instructions 8 to the ALJ. 9 In vacating the previous ALJ s decision, the Appeals Council found 10 that the decision does not contain an adequate evaluation of the 11 treating source opinions, and further found that the prior ALJ did 12 not consider the opinions by treating physician Michelle Harris, M.D., 13 ... (AR 475, emphasis added.) 14 functional questionnaire completed by Dr. Harris on November 29, 2007 15 (AR 475, citing 346-352), and ordered the ALJ, on remand, among other 16 things, to do the following: 17 The Appeals Council referenced a Obtain additional 18 sources to 19 impairments, especially with regard to diabetes, high blood 20 pressure, depression and anxiety, to include medical source 21 statements; 22 1. Some reference to that Appeals Council Order is merited. 2. Evaluate clarify the medical the treating evidence severity and from of examining the the source treating claimant s opinions, 23 particularly the opinions by Dr. Harris ... As appropriate, 24 the Administrative Law Judge may request the treating and 25 examining sources to provide additional evidence ... about 26 what the claimant can still do despite the impairments (20 27 CFR 404.1512 and 416.912). 28 (AR 476.) 3 1 2 3 Additional instruction was provided to the ALJ by the Appeals Council. The ALJ failed to carry out either this Court s Order of Remand, 4 or the Order of the Appeals Council. Instead, the ALJ made a 5 determination that, Dr. Harris apparently did not treat the claimant 6 on a consistent basis ... It appears that her treatment record for the 7 claimant was very short, and did not contain objective findings over 8 a significant treatment period. Therefore, the opinions of Dr. Harris 9 are entitled to little weight. (AR 389.) The ALJ also determined 10 that another of Plaintiff s treating physicians from the USC County 11 facility, Dr. Angel, was not a treating physician, appeared not to be 12 an examining source, and therefore, determined that his opinions 13 would only entitled to the weight given to a non-examining source. 14 (AR 389.) 15 By taking this tack, the ALJ rendered a decision which is 16 entitled to little if any weight from this Court. 17 tasked with determining whether either Dr. Harris or Dr. Angel were 18 treating physicians. 19 opinions in accordance with Social Security Regulations, the Code of 20 Federal Regulations, and applicable statutes, and, further if there 21 was any question as to their conclusions, to attempt to develop the 22 record by obtaining further evidence. As noted by the Appeals 23 Council, may 24 cooperation of the claimant s representative in developing evidence 25 from the claimant s treating sources. (AR 476.) 26 occurred. (See, 20 CFR § 404.977(b)( The [ALJ] shall take any action 27 that is ordered by the Appeals Council, ... ) 28 to assess Dr. Harris as a treating source. the The ALJ was not Rather, she was required to reevaluate these Administrative Law 4 Judge enlist the aid and None of this The ALJ was obligated Her failure to do that, 1 and instead her determination that Dr. Harris opinion is deserving of 2 little deference, and indeed, that Dr. Harris may fall to the bottom 3 rung of the ladder as a non-examining source, is fundamental error, 4 mandating another remand. 5 (9th Cir. 2001). 6 these persons, among others, are Plaintiff s treating physicians. 7 not evaluating their opinions as those of treating physicians, the ALJ 8 failed to provide the requisite specific, or even legitimate reasons 9 to reject their opinions. 10 11 See Strauss v. Commissioner, 635 F.3d 1135 There is ample factual evidence in the record that By See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Compounding as error that is Dr. the ALJ s Harris reliance opinion on did conclusory 12 statements, 13 objective findings over a significant treatment period, which have 14 deprived the Court of its essential function of determining whether an 15 ALJ s evaluation of a physician s opinion is sustainable. 16 exactly this type of conclusory statement which the Ninth Circuit has 17 long held to be inadequate for judicial review. 18 Commissioner, 166 F.3d 1294, 1299 (9th Cir. 1999). 19 such the not contain It is See Regennitter v. Even absent these fatal structural errors, the ALJ s evaluation 20 of the opinions of Drs. Angel and Harris falls short. 21 instead of undertaking a careful evaluation of the evidence, the ALJ 22 determined 23 testifying medical expert ( ME ), Dr. Brovender. (See AR at 404-418.) 24 Dr. Brovender is trained as an orthopedist, yet he felt competent to 25 provide opinions with regard to Plaintiff s hypertension and glaucoma. 26 While it may not be required by any specific statute or regulation 27 that a testifying medical expert must have expertise in all areas in 28 which he renders an opinion, limitations in expertise should be to simply accept the 5 opinions of the It appears that telephonically 1 carefully evaluated by the ALJ. 2 even though Dr. Brovender acknowledged that he had no specific 3 expertise outside his area of specialization in orthopedics (AR 408), 4 he nevertheless rendered very specific opinions regarding Plaintiff s 5 diabetes and hypertension, although he seemed unfamiliar with certain 6 fundamental tests that pertain to diabetes. (See AR at 410-411, and JS 7 at 7, fn. 2.) 8 seemed 9 Plaintiff s ability to ambulate, without specifically discussing the to Moreover, even in the area of orthopedics, the ALJ uncritically record Here, Plaintiff correctly notes that which, accept by Dr. virtue of Brovender s the opinion opinions of as to 10 medical examining 11 orthopedists, substantiates that Plaintiff at times limped, walked 12 with an antalgic gait, used crutches, and had locking in his knees. 13 (See AR at 218, 238, 243, 244.) 14 Workers Compensation Agreed Medical Examiner, orthopedic surgeon Dr. 15 Angerman, indicated that Plaintiff walked with an antalgic gait and 16 should be precluded from walking on uneven terrain. (AR 205-213.) 17 While the Court does not opine whether this opinion should be entitled 18 to controlling weight, nevertheless, the ALJ s job was to determine 19 whether non-examining physician Dr. Brovender correctly analyzed the 20 medical records he reviewed in order to render his opinion. 21 another example, in one of the reports that Dr. Brovender indicated he 22 reviewed, the conclusion of the examiner was that Plaintiff should be 23 limited to occasional walking on uneven terrain (AR 266); however, Dr. 24 Brovender interpreted that report as demonstrating full range of 25 motion in the upper and lower extremities. (AR 407.) 26 obvious contradiction which the ALJ must have reconciled instead of 27 uncritically accepting the non-examining physician s interpretation. 28 It is hornbook law that in and of itself, the opinion of the non- For example, the opinion of the 6 As This is an 1 examining physician, cannot constitute substantial evidence to reject 2 the opinion of an examining or treating doctor. See Lester v. Chater, 3 81 F.3d 821, 831 (9th Cir. 1995). 4 As is often the case, an ALJ s evaluation of the opinions of 5 treating and examining physicians is determinative of and relevant to 6 many other issues. 7 second issue is whether the ALJ gave legally sufficient reasons for 8 rejecting his testimony. The 9 as to his subjective symptoms, to the extent they differed from her 10 assessment of his residual functional capacity ( RFC ). (See AR at 11 389.) 12 large part dependent upon which opinions she credited among those of 13 treating, examining and non-examining physicians. 14 noted, in this case the ALJ uncritically accepted the opinion of the 15 non-examining ME, and therefore, her credibility analysis cannot be 16 sustained, since it is built on a shaky and inadequate foundation. That is the case here. For example, Plaintiff s ALJ depreciated Plaintiff s credibility Clearly, the ALJ s determination of Plaintiff s RFC was in As the Court has 17 The Court s concern with the adequacy of the ALJ s evaluation of 18 the record, much less her conclusions, is also evidenced with regard 19 to the third issue in this case, which is whether the ALJ properly 20 evaluated Plaintiff s diabetes mellitus. 21 condition 22 Decision, this conclusion is based on a single entry in a medical 23 record dated February 29, 2009. (See AR 390, 602.) 24 somewhat incredulous at the skimpy basis for this conclusion, in view 25 of a rather substantial amount of information in the medical record 26 which indicates that Plaintiff s diabetes has historically been poorly 27 controlled. 28 appears to was controlled with The ALJ concluded that this medication. According to her The Court is See AR 265 (Dr. Taylor s indication that Plaintiff have very poor blood 7 sugar control and symptoms of 1 peripheral neuropathy); typically high blood sugar readings (AR 261); 2 consistently high A1c results (AR 294, 298, 300, 580, 588, 595, 600, 3 616); and high glucose levels in twelve laboratory studies between 4 2006 and 2009. (AR 308, 604-08.) Moreover, between 2006 and 2010, 5 Plaintiff s increased 6 medications several times. 7 concluding 8 controlled. 9 that Plaintiff s diabetes appears to be controlled (see testimony at 10 AR 408), the ALJ effectively abdicated her role of independently 11 evaluating medical opinions and simply accepted the opinion of a non- 12 testifying orthopedist with regard to an area in which he admittedly 13 had no expertise. 14 treating that physicians Plaintiff s diabetes One cannot read these records without Plaintiff s diabetes condition was not well In accepting the opinion of orthopedist Dr. Brovender Similar infirmities plague the ALJ s evaluation of Plaintiff s 15 glaucoma, which is the subject of Issue No. 4. 16 the record concerning this condition which demands objective and 17 independent evaluation. 18 he was examined by physicians with expertise in the area of glaucoma. 19 Nevertheless, the ALJ s opinion simply failed to review or evaluate 20 any of this information, and instead reached the conclusion that 21 Plaintiff s 22 operating a motor vehicle. (AR 390.) 23 formed the basis for the ALJ s ultimate conclusion, at Step Five of 24 the sequential evaluation, that other work exists in the economy which 25 Plaintiff can perform. (Issue No. 5.) 26 asserted There is evidence in Plaintiff often reported blurry vision when vision problems did not preclude him from Again, this faulty analysis The Court is concerned by the fact that over six years have 27 passed since Plaintiff first applied for disability benefits. 28 Court s role is not to opine whether or not Plaintiff is disabled; 8 The 1 rather, it is to evaluate the final decision of the Commissioner to 2 see if it is supported by substantial evidence. 3 affirm the Commissioner s decision. 4 that the second time around, in reaching a decision of non-disability, 5 the ALJ completely sidestepped the explicit instructions provided not 6 only by this Court in the Order of Remand, but by the Appeals Council 7 itself. Plaintiff is entitled to a prompt determination of whether or 8 not he is disabled. 9 perform that task as required. The Court cannot The Court is even more concerned The Court has no confidence that this ALJ can Thus, this is the rare case in which 10 the Court will require that on remand, the issue of Plaintiff s 11 disability application will be reviewed de novo by a new ALJ, although 12 the 13 assignment to the same ALJ on a second remand. 14 will be mindful of this Court s previous Order of Remand, and the 15 implementing Order of the Appeals Council. 16 17 18 Commissioner s own regulations may independently prohibit On remand, the ALJ For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 19 20 21 DATED: April 30, 2012 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 9
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