Jack Foster v. Michael Astrue, No. 2:2011cv05181 - Document 19 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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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 JACK FOSTER, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 11-05181-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on June 21, 2011, seeking review of the 19 denial of 20 disability insurance benefits ( DIB ). 21 consented, pursuant to 28 U.S.C. § 636(c), to proceed before the 22 undersigned United States Magistrate Judge. 23 Stipulation on May 3, 2012, in which: 24 reversing the Commissioner s decision and remanding this case for the 25 payment 26 proceedings; and the Commissioner requests that his decision be affirmed 27 or, alternatively, remanded for further administrative proceedings. 28 // of plaintiff s benefits application for or, a period of disability and On August 26, 2011, the parties alternatively, The parties filed a Joint plaintiff seeks an order for further administrative 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 On October 12, 2007, plaintiff protectively filed an application 4 for a period of disability and DIB. (Administrative Record ( A.R. ) 23, 5 134.) 6 have been disabled since April 7, 2007 (A.R. 23, 179), due to status 7 post assault lumbar back pain, multilevel degenerative changes of the 8 lumbar spine, hypertension, and hearing loss. (A.R. 23, 39-58, 72, 134, 9 179, 204, 241.) Plaintiff, who was born on April 15, 1957 (A.R. 72),1 claims to 10 11 After the Commissioner denied plaintiff s claim initially and upon 12 reconsideration (A.R. 23, 74-77, 83-86), plaintiff requested a hearing 13 (A.R. 87). 14 attorney Mark 15 Administrative Law Judge Kevin M. McCormick (the ALJ ). 16 71.) 17 Susan L. Allison also testified. 18 denied 19 subsequently denied plaintiff s request for review of the ALJ s decision 20 (A.R. 1-5). On September 28, 2009, plaintiff, who was represented by Tinnel, appeared and testified at a hearing before (A.R. 23, 36- Impartial medical expert Alanson A. Mason and vocational expert plaintiff s claim (A.R. (Id.) On December 23, 2009, the ALJ 23-32), and the Appeals Council That decision is now at issue in this action. 21 22 SUMMARY OF ADMINISTRATIVE DECISION 23 24 The ALJ found that plaintiff met the insured status requirements of 25 the Social Security Act through December 31, 2010. 26 also found that plaintiff has not engaged in (A.R. 25.) The ALJ substantial gainful 27 1 28 On the alleged disability onset date, plaintiff was 49 years old, which is defined as a younger person. (20 C.F.R. § 404.1563.) 2 1 activity since April 07, 2007, the alleged onset date of his disability. 2 (Id.) 3 status post assault lumbar back pain and multilevel degenerative 4 changes of the lumbar spine. 5 plaintiff s 6 determinable physical/medical impairments. 7 that plaintiff does not have an impairment or combination of impairments 8 that meets or medically equals one of the listed impairments in 20 9 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 10 The ALJ determined that plaintiff has the severe impairments of hearing 404.1525, 404.1526). loss (A.R. 25, 27.) and He also determined that hypertension are (A.R. 28.) not medically The ALJ found (Id.) 11 12 After reviewing the record, the ALJ determined that plaintiff has 13 the residual functional capacity ( RFC ) to perform light work as 14 defined in 20 C.F.R. § 404.1567(b), with the following exceptions: 15 16 [Plaintiff] is limited to lifting and/or carrying 20 lbs 17 occasionally and 10 lbs frequently; standing and/or walking 6 18 hours total out of an 8-hour workday; sitting on an unlimited 19 basis; climbing ramps or stairs occasionally; never climbing 20 ladders, ropes or scaffolds; balancing, stooping, kneeling, 21 crouching and crawling occasionally. 22 avoid all exposure to hazards, such as machinery and heights. [Plaintiff] must also 23 24 (A.R. 28.) 25 26 The ALJ concluded that plaintiff is capable of performing his past 27 relevant work in automobile sales and as a security guard and an 28 3 1 investigator. 2 2 plaintiff has not been under a disability, as defined in the Social 3 Security Act, from April 07, 2007, through the date of his decision. 4 (A.R. 32.) (A.R. 31-32.) Accordingly, the ALJ concluded that 5 6 STANDARD OF REVIEW 7 8 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 9 decision to determine whether it is free from legal error and supported 10 by substantial evidence in the record as a whole. Orn v. Astrue, 495 11 F.3d 625, 630 (9th Cir. 2007). 12 evidence as a reasonable mind might accept as adequate to support a 13 conclusion. 14 a mere scintilla but not necessarily a preponderance. 15 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 16 record can constitute substantial evidence, only those reasonably drawn 17 from the record will suffice. 18 1066 (9th Cir. 2006)(citation omitted). Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 1063, 19 20 Although this Court cannot substitute its discretion for that of 21 the Commissioner, the Court nonetheless must review the record as a 22 whole, weighing both the evidence that supports and the evidence that 23 detracts from the [Commissioner s] conclusion. 24 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 25 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). Desrosiers v. Sec y of The ALJ is 26 27 28 2 In his decision, the ALJ noted that the vocational expert found that plaintiff has past relevant work as an automobile salesman, security guard, delivery route driver, and investigator. (A.R. 32.) 4 1 responsible for determining credibility, resolving conflicts in medical 2 testimony, and for resolving ambiguities. 3 1035, 1039 (9th Cir. 1995). Andrews v. Shalala, 53 F.3d 4 5 The Court will uphold the Commissioner s decision when the evidence 6 is susceptible to more than one rational interpretation. Burch v. 7 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 8 review only the reasons stated by the ALJ in his decision and may not 9 affirm the ALJ on a ground upon which he did not rely. However, the Court may Orn, 495 F.3d 10 at 630; see also Connett, 340 F.3d at 874. The Court will not reverse 11 the Commissioner s decision if it is based on harmless error, which 12 exists only when it is clear from the record that an ALJ s error was 13 inconsequential to the ultimate nondisability determination. Robbins 14 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 15 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 16 at 679. 17 18 DISCUSSION 19 20 Plaintiff claims that the ALJ: (1) improperly evaluated 21 plaintiff s credibility; and (2) improperly assessed plaintiff s RFC. 22 (Joint Stipulation ( Joint Stip. ) at 3-5, 7-10.) 23 24 25 I. The ALJ Failed To Give Clear And Convincing Reasons To Support His Finding That Plaintiff Lacked Credibility. 26 27 Once a disability claimant produces objective medical evidence of 28 an underlying impairment that is reasonably likely to be the source of 5 1 claimant s subjective symptom(s), all subjective testimony as to the 2 severity of the symptoms must be considered. 3 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 4 (9th Cir. 1991); see also 20 C.F.R. § 404.1529(a) (explaining how pain 5 and other symptoms are evaluated). 6 malingering based on affirmative evidence thereof, he or she may only 7 find an applicant not credible by making specific findings as to 8 credibility 9 Robbins, 466 F.3d at 883. and stating clear Moisa v. Barnhart, 367 [U]nless an ALJ makes a finding of and convincing reasons for each. The factors to be considered in weighing a 10 claimant s credibility include: (1) the claimant s reputation for 11 truthfulness; (2) inconsistencies either in the claimant s testimony or 12 between the claimant s testimony and his conduct; (3) the claimant s 13 daily activities; (4) the claimant s work record; and (5) testimony from 14 physicians and third parties concerning the nature, severity, and effect 15 of the symptoms of which the claimant complains. 16 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. 17 § 404.1529(c). See Thomas v. 18 19 The ALJ found that plaintiff s medically determinable impairments 20 could reasonably be expected to cause the alleged symptoms. (A.R. 29.) 21 Further, although the ALJ suspected that plaintiff underwent treatment 22 for his impairments only to generate evidence for [plaintiff] s lawsuit 23 against the government for assault (A.R. 30-31.), the ALJ neither 24 expressly found that plaintiff was malingering nor cited any evidence of 25 malingering by plaintiff. 26 plaintiff s credibility must be clear and convincing. Accordingly, the ALJ s reason for rejecting 27 28 6 1 The ALJ stated that plaintiff s statements concerning the 2 intensity, persistence and limiting effects of [his] symptoms are not 3 credible to the extent they are inconsistent with [the ALJ s RFC] 4 assessment. 5 lacked credibility because: 6 trips 7 plaintiff consciously attempted to portray limitations tha[t] are not 8 actually present in order to increase the chance of obtaining benefits; 9 and (3) repeated objective medical tests failed to show any significant to (A.R. 29.) the doctor Specifically, the ALJ found that plaintiff (1) plaintiff s relatively infrequent bear[] (A.R. 29-30.) negatively on his 10 abnormalities. 11 credibility; (2) None of these reasons is adequate to support the ALJ s adverse credibility determination. 12 13 First, it is neither clear nor convincing that plaintiff s 14 relatively infrequent trips to the doctor bear negatively on his 15 credibility. 16 treatment as essentially routine. 17 plaintiff went to the emergency room back in October 2007 and then had 18 only a couple of visits with Dr. [Fred F.] Hafezi[, an orthopedist,] 19 resulting in conservative care, medications and facet block, all of 20 which took place immediately after [plaintiff] s injury occurred. 21 (Id.) 22 Dr. Hafezi s care, and that there is no indication [plaintiff] has 23 been referred 24 treatment for his reported complaints . . . . In his decision, the ALJ characterized (A.R. 30.) plaintiff s The ALJ noted that In addition, the ALJ noted that plaintiff was discharged from for physical therapy, pain management or any other (Id.) 25 26 This account of plaintiff s treatment history is misguided. As the 27 ALJ himself detailed, plaintiff first had x-rays of his spine back on 28 April 27, 2007. (A.R. 25.) Plaintiff presented to Dr. Hafezi for 7 1 orthopedic consultation on July 17, 2007, and again for two facet block 2 procedures on August 15, 2007, and September 5, 2007. 3 Plaintiff returned for an orthopedic evaluation on October 9, 2007, at 4 which time Dr. Hafezi recommended neuovasive [sic] discectomy and 5 fusion costing approximately $85,000. 6 Hafezi prescribed conservative treatment costing $15,000 annually, 7 consisting of use of a TENS unit back brace, Vicodin tablets, as well as 8 physical therapy, and delaying the interbody fusion until funds are 9 available. (A.R. 274-75.) (A.R. 274.) (A.R. 26.) Alternatively, Dr. Thereafter, plaintiff was admitted to the 10 emergency room at Citrus Valley Medical Center on October 15, 2007, and 11 presented to Dr. Salvador Saldana for an MRI of the lumbar spine. 12 26-27.) 13 (A.R. 27.) 14 for reevaluation, and he then underwent an additional MRI on May 3, 15 2008. 16 that, although Dr. Hafezi continued to provide plaintiff medication 17 until two or three months prior to the hearing, plaintiff stopped 18 treatment due to Dr. Hafezi s advice that the only other thing he could 19 do is operate. 20 these operations would cost $100,000. 21 testified that he was still trying to find other doctors [for] their 22 opinion (A.R. 49), he uses a cane for ambulation (A.R. 52), and he was 23 still seeing a chiropractor for neck and back problems on the date of 24 the 25 plaintiff s initial x-rays were taken. (A.R. On October 29, 2007, plaintiff had another lumbar spine MRI. (Id.) hearing On April 2, 2008, plaintiff presented again to Dr. Hafezi At the hearing on September 29, 2009, plaintiff testified (A.R. 49.) As the ALJ noted, Dr. Hafezi opined that (A.R. 56) -- over two (A.R. 27.) years and Plaintiff further five months after 26 27 28 Thus, the ALJ s description of plaintiff s treatment -- as relatively infrequent and essentially routine -- is not convincing, 8 1 because the medical record shows that plaintiff s treatment was not 2 insubstantial 3 treatment plaintiff actually received misstates the record and is 4 improper. 5 1998)(The ALJ erred in developing the evidentiary basis for his finding 6 by not fully accounting for all evidence of record and by inaccurately 7 paraphrasing portions of the record). 8 articulate why the treatment plaintiff received is inconsistent with the 9 opinions expressed by the medical expert. in time or cost. The ALJ s understatement of the See, e.g., Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. In addition, the ALJ failed to The ALJ s reliance on the 10 purportedly minimal nature of plaintiff s treatment does not constitute 11 a 12 credibility. clear and convincing reason for finding that plaintiff lacked 13 14 Second, the assertion that plaintiff undermined his credibility by 15 consciously attempt[ing] to portray limitations tha[t] are not actually 16 present in order to increase the chance of obtaining benefits provides 17 neither a clear nor convincing reason for finding that plaintiff lacks 18 credibility. 19 paucity of medical evidence to corroborate plaintiff s hearing loss 20 and because plaintiff reported neither significant medical problems 21 nor 22 respectively, plaintiff s 23 inconsistent and 24 [plaintiff] has alleged may be similarly unreliable. 25 parties Joint Stipulation, however, plaintiff explains that he alleges 26 a disability based on back impairment, not hearing loss, and he does not 27 consider his hearing loss disabling, so there would be no reason to other (A.R. 30.) injuries The ALJ concluded that, because there was a upon visits to descriptions unpersuasive and 28 9 Drs. of Holland his suggest and hearing that Hafezi, loss are of what much (Id.) In the 1 report this impairment to treating or examining physicians. 2 (Joint Stip. at 10.) 3 4 While the Commissioner is correct that plaintiff s explanation 5 misses the thrust of the ALJ s findings (Joint Stip. at 11), the ALJ s 6 findings are themselves misplaced, because they rest on a non-existent, 7 purported inconsistency. 8 July 17, 2007 initial consultation, that patient has a pre-existing 9 hearing loss. Plaintiff s treating orthopedist noted, in a (A.R. 286.) In the questionnaire on which the ALJ 10 relies (A.R. 30), in which plaintiff reported no other injuries, 11 plaintiff checked yes next to the field for impaired hearing. (A.R. 12 292-93.) However, on the line above, plaintiff checked no next to the 13 field for ear disease, apparently indicating his belief that his 14 hearing impairment is not a disease or injury for which disability 15 benefits are warranted. 16 identify his hearing impairment as a significant medical problem when 17 he went to the emergency room for treatment for lower back pain is not, 18 as the ALJ finds (A.R. 30), of any significance. (Id.) Therefore, plaintiff s failure to 19 20 Moreover, on October 25, 2007, only ten days after that emergency 21 room visit, plaintiff s interviewer during a disability field report 22 observed that plaintiff had difficulty hearing. The interviewer stated, 23 I had to speak extremely loud[ly] so that he would hear me. 24 174-76.) 25 a different interviewer observed that plaintiff was very hard of 26 hearing on [the] left ear. 27 of plaintiff at the hearing was repeatedly paused, because plaintiff 28 stated he could not hear the ALJ s questions. (A.R. During a subsequent disability field report on May 02, 2008, (A.R. 191.) Finally, the ALJ s examination 10 (A.R. 39-40, 42-43.) 1 Viewing the record as a whole, plaintiff s statements regarding his 2 hearing loss are not inconsistent, and independent observers have 3 witnessed his hearing difficulties. 4 has consciously attempted to portray limitations that are not actually 5 present (A.R. 30) lacks any substantial evidentiary basis, and thus, it 6 is not clear and convincing. The ALJ s finding that plaintiff 7 8 Third and finally, as no other clear and convincing reason to find 9 plaintiff not credible exists, the ALJ s rejection of plaintiff s 10 subjective symptoms on the ground that repeated objective medical tests 11 failed to show any significant abnormalities (A.R. 30) is legally 12 insufficient. 13 tests revealed only mild disc bulges with no herniated discs, mild 14 scoliosis, and mild degenerative spur formation (A.R. 29); and 15 although plaintiff had decreased range of motion in his spine during his 16 initial orthopedic consultation, objective medical tests showed normal 17 mobility occurring throughout all segments of the lumbar spine (A.R. 18 30). 19 correct, his conclusion as to its impact for purposes of plaintiff s 20 credibility is not. In drawing this conclusion, the ALJ noted that: medical Even if the ALJ s appraisal of the objective medical evidence is 21 22 Excess pain is, by definition, pain that is unsupported by 23 objective medical findings. Cotton v. Bowen, 799 F.2d 1403, 1407 (9th 24 Cir. 1986). The ALJ specifically found that plaintiff s medically 25 determinable impairments 26 plaintiff alleges. 27 same objective evidence could support plaintiff s claim as to the 28 severity of his symptoms. could (A.R. 29.) be expected to cause the symptoms The ALJ, however, disputes that this 11 1 The ALJ s apparent belief that the severity of plaintiff s claimed 2 pain could not be believed, absent clinical or diagnostic proof 3 establishing the excess pain level claimed by plaintiff is misguided, 4 because plaintiff is not required to produce objective medical evidence 5 to support the severity of his asserted pain or symptoms. 6 of the medical record to corroborate a claimant s subjective symptom 7 testimony is not, by itself, a legally sufficient basis for rejecting 8 such testimony. 9 2001); Bunnell, 947 F.2d at 347 (noting that [i]f an adjudicator could 10 reject a claim of disability simply because a claimant fails to produce 11 evidence supporting the severity of the pain there would be no reason 12 for an adjudicator to consider anything other than medical findings ). 13 Thus, the ALJ s finding that the objective medical evidence does not 14 support the degree of pain asserted by plaintiff cannot, by itself, 15 constitute a clear and convincing reason for discrediting plaintiff s 16 testimony. 17 Cotton, 199 F.2d at 1407; see also Burch, 400 F.3d at 681. The failure Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. See Varney v. Secretary, 846. F.2d 581, 584 (9th Cir. 1998); 18 19 The ALJ failed to give clear and convincing reasons for 20 discrediting plaintiff s testimony, for the reasons set forth above. 21 Accordingly, the ALJ s adverse credibility determination constitutes 22 reversible error. 23 24 25 II. On Remand, The ALJ Should Revisit His RFC Assessment In View Of The Various Medical Opinions. 26 27 28 It is the responsibility of the ALJ to analyze evidence and resolve conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 12 1 (9th Cir. 1989). 2 assessing a social security claim, [g]enerally, a treating physician s 3 opinion carries more weight than an examining physician s, and an 4 examining physician s opinion carries more weight than a reviewing 5 physician s. 6 2001); 7 specialist about medical issues related to his or her area of specialty 8 generally receives more weight than the opinion of a source who is not 9 a specialist. 20 In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. C.F.R. § 404.1527(d). Additionally, the opinion of a 20 C.F.R. § 404.1527(c)(5). 10 11 The opinions of treating physicians are entitled to the greatest 12 weight, because the treating physician is hired to cure and has a better 13 opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When 14 a treating physician s opinion is not contradicted by another physician, 15 it may be rejected only for clear and convincing reasons. 16 Chater, 81 F.3d 821, 830 (9th Cir. 1995)(as amended). When contradicted 17 by another doctor, a treating physician s opinion may only be rejected 18 if the ALJ provides specific and legitimate reasons supported by 19 substantial evidence in the record. Lester v. Id. 20 21 The opinion of a nonexamining physician cannot by itself 22 constitute substantial evidence that justifies the rejection of the 23 opinion of . . . a treating physician. 24 Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)(finding that 25 the 26 constitute substantial evidence). 27 claimant s treating physician is contradicted, and the opinion of a 28 nontreating source is based on independent clinical findings that differ nonexamining physician s opinion Lester, 81 F.3d at 831; see with nothing more did not However, [w]here the opinion of the 13 1 from those of the treating physician, the opinion of the nontreating 2 source may itself be substantial evidence. 3 Independent clinical findings include (1) diagnoses that differ from 4 those offered by another physician and that are supported by substantial 5 evidence, or (2) findings based on objective medical tests that the 6 treating physician has not herself considered. 7 (internal citations omitted). Andrews, 53 F.3d at 1041. Orn, 495 F.3d at 632 8 9 On July 7, 2007, approximately three months after plaintiff s 10 allegedly disabling assault, 11 treating plaintiff. (A.R. 12 examination, Dr. Hafezi noted that, stemming from the assault, plaintiff 13 suffered from lumbago and transverse low back pain radiating to the 14 left gluteal fold. 15 plaintiff by Dr. Hafezi revealed that plaintiff had: 16 flexion on the right at 15 degrees, and on the left at 10 degrees; (2) 17 rotation on the right side of 70 degrees, and on the left of 60 degrees; 18 (3) normal cervical lordosis; (4) nontender cervical spine median and 19 paramedian 20 muscles. 21 severe tenderness of the lumbosacral and L4/5 junctions, as well as 22 moderate tenderness in the paraxial structures corresponding to the 23 L3/4, L4/5, and L5/S1 joints. 24 showed 25 subluxation compatible with a torsional back motion injury. 26 288.) 27 plaintiff s x-rays, Dr. Hafezi diagnosed plaintiff with, inter alia, 28 facet syndrome structures; (A.R. 287.) facet orthopedist 270.) (A.R. 286.) and (5) In Fred a July Hafezi, 17, M.D. 2007 began initial A cervical spine examination of supple and (1) lateral nontender paracervical Dr. Hafezi s lumbar spine examination revealed irregularity (Id.) of the Furthermore, orthopedic x-rays L5/S1 segment with rotatory (A.R. Based on his physical examination of plaintiff and review of lumbosacral spine, 14 chronic myoligamentous sprain 1 lumbosacral spine, and probable central herniation of fourth and fifth 2 lumbar spine. 3 spine and a rigid back brace for plaintiff, and directed plaintiff to 4 continue chiropractic and physical therapy treatment to his low back for 5 three to six months. (A.R. 288-89.) (Id.) Dr. Hafezi ordered an MRI of the lumbosacral 6 7 Dr. Hafezi then performed facet block procedures on plaintiff on 8 August 15, 2007, and September 05, 2007, which provided plaintiff with 9 some pain relief. (A.R. 270, 276, 278.) Concurrently with the second 10 procedure, Dr. Hafezi renewed plaintiff s Vicodin medication. 11 (A.R. 279.) 12 13 On October 9, 2007, upon final orthopedic evaluation and discharge 14 by Dr. Hafezi, plaintiff continue[d] to complain of aching pain in his 15 low back where a crouched posture occurs frequently, and is only 16 relieved by Codeine tablets whose analgesic effect lasts only four 17 hours. 18 showed a normal gait, severe tenderness overlaid the L4/5 interspace and 19 slight tenderness overlaid the L5/S1 interspace. 20 final diagnosis included [p]ost traumatic rotary subluxation of L5/S1 21 facet joint, and [s]evere myoligamentous chronic sprain lumbosacral 22 spine. 23 herniated or ruptured disc. 24 [t]he complexity of [plaintiff s] low back injury . . . in all 25 probability will require one level neuovasive [sic] discectomy and 26 fusion at the L4/5 level to relieve his back pain. 27 then sent plaintiff to Salvador Saldana, M.D., a chiropractor, for 28 further treatment and an MRI. (A.R. 273.) (A.R. 274.) Although Dr. Hafezi s lumbar spine examination (Id.) Dr. Hafezi s Dr. Hafezi also remained highly suspicious of a (Id.) At that time, Dr. Hafezi opined (A.R. 275.) 15 (Id.) Dr. Hafezi 1 In the interim, however, plaintiff was admitted to the emergency 2 room at Citrus 3 complaints 4 plaintiff s lumbar spine and found mild multilevel degenerative changes 5 most severe at the level of L4-5 which demonstrates a disc bulge and 6 ligamentum flavum hypertrophy with mild spinal canal stenosis. 7 241.) Dr. Holland instructed plaintiff to continue his pain medication 8 as per his primary doctor, not to do any heavy lifting over 20 9 pounds, and to avoid repetitive bending or stooping. of Valley lower Medical back Center pain. J. on Paul October 15, Holland, 2007, M.D. with examined (A.R. (A.R. 224.) 10 11 On October 29, 2007, plaintiff underwent an MRI. Dr. Saldana, a 12 chiropractor, found normal intervertebral disc space and no evidence of 13 herniation or bulge. (A.R. 244.) 14 15 On the basis of the medical evidence available as of January 2008, 16 Dr. Earl Cooper, the State Agency non-examining physician, opined that 17 plaintiff could stand and/or walk 6 hours total per 8-hour workday. 18 (A.R. 249.) 19 any 20 physical capacities. 21 evaluation, Monica Torres, a State Agency counselor, determined on 22 January 16, 2008, that plaintiff retained the RFC to perform light work. 23 (A.R. 253-55.) Dr. Cooper noted that the file he reviewed did not include treating or examining source (A.R. 252.) statements regarding plaintiff s On the basis of Dr. Cooper s 24 25 Plaintiff returned to Dr. Hafezi for orthopedic re-evaluation on 26 April 2, 2008. Dr. Hafezi s lumbar spine examination revealed: 27 (1) hyperesthesia over the coccygeal area ; (2) plaintiff is in a 28 crouched posture and cannot straighten up as his back has locked ; 16 1 (3) focal severe tenderness in the L4/5 interspace, and to a lesser 2 extent in the L5/S1 disc space; (4) [n]o motion occurs through the 3 lumbar spine, but only through the hip joints, on forward flexion of 60 4 degrees ; 5 instability has set in. (A.R. 271.) 6 mobility occurring throughout all segments of the lumbar spine, lumbar 7 lordosis and integrity of the disc spaces were maintained, and there was 8 no spondylosis or fracturing. 9 Dr. Hafezi diagnosed plaintiff with [p]rogressive spinal instability L4 10 to S1 with progressive disc herniation L4/5 and L5/S1, and [p]osterior 11 L5 and S1 radiculitis. 12 medication - a course of Parafon forte twice daily and Toradol 50 mg - 13 and opined that plaintiff s condition required two prosthetic disc 14 insertions. (A.R. 272.) and (5) paraxical facet (Id.) (Id.) joints are again tender as Orthopedic x-rays showed normal On the basis of this examination, Dr. Hafezi treated plaintiff with new 15 16 An MRI taken May 3, 2008, showed alignment and lordosis maintained, 17 no fracturing, and unremarkable conus and paravertebral musculature. 18 (A.R. 264.) 19 L4 through S1 without evidence of canal stenosis or neural foraminal 20 narrowing. The MRI did show, however, 1-2 mm posterior disc bulges at (A.R. 265.) 21 22 State Agency physician Rosa Halpern reviewed all the medical 23 evidence in plaintiff s file on June 25, 2008, and affirmed the State s 24 January 2008 RFC assessment that plaintiff is capable of performing 25 light work. 26 plaintiff could perform occasional postural activities with no climbing 27 of ladders, ropes, or scaffolds, and should avoid all exposure to 28 hazards. (A.R. 294-95, 254.) (Id.) Specifically, Dr. Halpern opined that However, Dr. Halpern did not opine as to any walking or 17 1 standing restrictions or the duration for which plaintiff could stand 2 and/or walk during an 8-hour workday. (Id.) 3 4 At the hearing on September 28, 2009, the ALJ examined Alanson 5 Mason, M.D., an orthopedic surgeon, who testified as a medical expert. 6 (A.R. 58-64.) 7 opined that plaintiff was capable of standing and walking at least a 8 total of two hours out of an eight-hour day. 9 examination by plaintiff s attorney, Dr. Mason clarified that the two Based on plaintiff s entire medical record, Dr. Mason (A.R. 65.) (A.R. 62.) On cross 10 hour number is a total. Explaining why he believed 11 plaintiff is limited to such walking and standing restrictions, Dr. 12 Mason answered: because he s been consistently [] complaining bitterly 13 of pain, of severe pain. 14 disability is based upon pain, which cannot be measured. (A.R. 63.) 15 Dr. Mason added that plaintiff s pain level is inconsistent with any 16 pathology that s been identified. I think we have to consider in part that his (Id.) 17 18 The opinions of Drs. Cooper and Mason, both non-examining 19 physicians, conflict as to plaintiff s RFC with respect to walking and 20 standing restrictions. 21 analyze the evidence and resolve this conflict in the medical testimony. 22 Magallanes, 23 testified that plaintiff could perform his past work as an automobile 24 salesperson, security guard, or investigator, only if he could stand and 25 walk about six hours. 26 assessment turned on the non-examining physicians opinions as to 27 plaintiff s walking and standing restrictions. On this point, any error 28 by the ALJ would not be harmless because such an error would not be 881 F.2d (A.R. 62, 249.) at 750. (A.R. 66.) It was the duty of the ALJ to Furthermore, the vocational expert Thus, in large part, the ALJ s RFC 18 1 inconsequential to the ultimate nondisability determination. 2 Robbins, 466 F.3d at 885. 3 4 The ALJ rejected Dr. Mason s assessment, which limited plaintiff to 5 standing or walking two hours out of an eight hour workday, stating, 6 such 7 evidence. 8 treating source limited the claimant to sedentary or less than the full 9 range of sedentary work. an assessment is (A.R. 31.) inconsistent with the objective medical The ALJ stated that [n]o treating or non- (Id.) Furthermore, the ALJ noted [t]he 10 record does not contain any functional limitations imposed by any 11 treating sources inconsistent with those found by the [ALJ]. (Id.) 12 13 This Court agrees with plaintiff that the ALJ failed to set forth 14 legally sufficient reasons for rejecting the standing and walking 15 limitations imposed by Dr. Mason. 16 Agency reviewing physicians, Dr. Mason is an orthopedic surgeon. 17 30.) 18 area of specialty generally receives more weight than the opinions of 19 non-specialist sources. 20 rejecting Dr. Mason s opinion, the ALJ was required to give specific and 21 legitimate reasons supported by substantial evidence in the record. 22 Lester, 81 F.3d at 830. (Joint Stip., 4.) Unlike the State (A.R. The opinion of a specialist about medical issues related to his 20 C.F.R. § 404.1527(c)(5). Therefore, in 23 24 The ALJ s reason for rejecting Dr. Mason s opinion -- to wit, that 25 the medical evidence does not support the level of walking and standing 26 limitations to which Dr. Mason opined -- is not legitimate. 27 that no treating source limited plaintiff to sedentary or less than the 28 full range of light work, and that no treating source imposed any 19 It is true 1 functional limitations on plaintiff inconsistent with those found by the 2 ALJ. 3 such evaluations, and it is conceivable they might have agreed with Dr. 4 Mason s assessment. An ALJ has a special duty to fully and fairly 5 develop and 6 considered. 7 the ALJ thought he needed to know the basis of Dr. Mason s opinion - 8 and the fact the ALJ questioned Dr. Mason on his standing and walking 9 assessment shows the ALJ did -- to evaluate his opinion, the ALJ had a (A.R. 31.) the But those treating sources were never asked to provide record to assure that claimant s interests Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 10 duty to conduct an appropriate inquiry. 11 are If See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). 12 13 Accordingly, as this case is being remanded for the reasons set 14 forth supra, the ALJ should revisit his consideration of the various 15 medical opinions on remand.3 16 consultative examination, based upon a complete review of the medical 17 record, is appropriate under the circumstances. In so doing, the ALJ may determine that a 18 19 III. Remand Is Required. 20 21 The decision whether to remand for further proceedings or order an 22 immediate award of benefits is within the district court s discretion. 23 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 24 useful purpose would be served by further administrative proceedings, or Where no 25 26 27 28 3 In particular, the ALJ should develop the record further to resolve the conflict between the opinions contained in Dr. Mason s testimony and the opinions of the State Agency physicians. Specifically, the ALJ should try to obtain opinions from plaintiff s several treating physicians as to the appropriate walking and standing restrictions to be imposed based on plaintiff s impairment. 20 1 where the record has been fully developed, it is appropriate to exercise 2 this discretion to direct an immediate award of benefits. 3 ( [T]he decision of whether to remand for further proceedings turns upon 4 the likely utility of such proceedings. ). 5 outstanding issues that must be resolved before a determination of 6 disability can be made, and it is not clear from the record that the ALJ 7 would be required to find the claimant disabled if all the evidence were 8 properly evaluated, remand is appropriate. Id. at 1179 However, where there are Id. at 1179-81. 9 10 Remand is the appropriate remedy to allow the ALJ the opportunity 11 to remedy the above-mentioned deficiencies and errors. 12 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 13 further proceedings is appropriate if enhancement of the record would be 14 useful); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)(ordering 15 remand so 16 findings, if any existed, for rejecting the claimant s subjective 17 symptom testimony). On remand, the ALJ must correct the above-mentioned 18 deficiencies and errors and further develop the record as appropriate. 19 After doing so, the ALJ may need to reassess plaintiff s RFC, in which 20 case additional testimony from a vocational expert likely will be needed 21 to determine what work, if any, plaintiff can perform. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// that the ALJ could articulate specific 21 and See, e.g., appropriate 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: July 23, 2012 14 15 16 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 22
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