Rodolfo Estrada-Farfan v. Michael J Astrue, No. 2:2011cv07339 - Document 20 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick, Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (rp)

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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 RODOLFO ESTRADA-FARFAN, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) ) Defendant. ) ___________________________________) NO. CV 11-7339-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 September 12, 2011, seeking review 26 of the Commissioner s denial of benefits. The parties filed a consent 27 to proceed before a United States Magistrate Judge on October 5, 2011. 28 Plaintiff filed a motion for summary judgment or remand on 1 February 17, 2012. Defendant filed a motion for summary judgment on 2 May 3, 2012. 3 without oral argument. 4 2011. The Court has taken both motions under submission See L.R. 7-15; Order, filed September 15, 5 6 BACKGROUND 7 8 Plaintiff alleges disability since November 1, 2006, based 9 primarily on alleged orthopedic problems (Administrative Record 10 ( A.R. ) 37-52, 157-68). Dr. Gerardo Canchola, apparently one of 11 Plaintiff s treating physicians,1 opined in a Physical Capacity 12 Evaluation that Plaintiff could not lift any weight and could not 13 perform any grasping or manipulation with his left hand (A.R. 407). 14 15 The Administrative Law Judge ( ALJ ) found Plaintiff has the 16 following severe impairment: status post left shoulder surgery and 17 cervical spine spurs with left foraminal impingement, but retains the 18 ability to work (A.R. 20-24). 19 contrary opinions, stating: The ALJ rejected Dr. Canchola s 20 21 22 23 24 25 26 27 28 1 The Ninth Circuit has held that a physician who has seen the claimant only twice for treating purposes qualifies as a treating physician. Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir. 1994); see also Benton v. Barnhart, 331 F.3d 1030, 1036-39 (9th Cir. 2003) (supervising psychiatrist who saw the claimant only once can qualify as a treating physician ); but see Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (the fact-specific test for qualifying as a treating physician turns on the duration of the treatment relationship and the frequency and nature of the contact between physician and claimant). Defendant does not appear to challenge Dr. Canchola s status as a treating physician. See Defendant s Motion at 6 (in discussing Dr. Canchola, Defendant cites cases discussing treating physicians). 2 1 The undersigned give [sic] Dr. Canchola s opinion little 2 weight in making this decision. 3 records in evidence from Dr. Canchola, who [sic] the 4 claimant apparently saw on two occasions. 5 provided for the assessed limitations. 6 support in the record for assessing the claimant as unable 7 to lift any weight, grasp or manipulate items with the 8 hands. 9 opinions of record. There are few treatment No basis is There is no credible There are other more persuasive medical source 10 11 (A.R. 22-23). The Appeals Council denied review (A.R. 1-3). 12 13 STANDARD OF REVIEW 14 15 Under 42 U.S.C. section 405(g), this Court reviews the 16 Administration s decision to determine if: (1) the Administration s 17 findings are supported by substantial evidence; and (2) the 18 Administration used correct legal standards. 19 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 20 499 F.3d 1071, 1074 (9th Cir. 2007). 21 relevant evidence as a reasonable mind might accept as adequate to 22 support a conclusion. 23 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 24 454 F.3d 1063, 1067 (9th Cir. 2006). 25 /// 26 /// 27 /// 28 /// See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 3 DISCUSSION 1 2 A treating physician s conclusions must be given substantial 3 4 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 5 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ( the ALJ must 6 give sufficient weight to the subjective aspects of a doctor s opinion 7 . . . 8 physician ) (citation omitted); see also Orn v. Astrue, 495 F.3d 625, 9 631-33 (9th Cir. 2007) (discussing deference owed to treating This is especially true when the opinion is that of a treating 10 physician opinions). Even where the treating physician s opinions are 11 contradicted,2 if the ALJ wishes to disregard the opinion[s] of the 12 treating physician he . . . must make findings setting forth specific, 13 legitimate reasons for doing so that are based on substantial evidence 14 in the record. 15 (citation, quotations and brackets omitted); see Rodriguez v. Bowen, 16 876 F.2d at 762 ( The ALJ may disregard the treating physician s 17 opinion, but only by setting forth specific, legitimate reasons for 18 doing so, and this decision must itself be based on substantial 19 evidence ) (citation and quotations omitted). Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) 20 21 Section 404.1512(e) of 20 C.F.R. provides that the Administration 22 will seek additional evidence or clarification from your medical 23 source when the report from your medical source contains a conflict or 24 ambiguity that must be resolved, the report does not contain all of 25 the necessary information, or does not appear to be based on medically 26 2 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 acceptable clinical and laboratory diagnostic techniques. See Smolen 2 v. Chater, 80 F.3d at 1288 ( If the ALJ thought he needed to know the 3 basis of Dr. Hoeflich s opinions in order to evaluate them, he had a 4 duty to conduct an appropriate inquiry, for example, by subpoenaing 5 the physicians or submitting further questions to them. 6 have continued the hearing to augment the record ) (citations 7 omitted); see also Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) 8 ( the ALJ has a special duty to fully and fairly develop the record 9 and to assure that the claimant s interests are considered ). He could also 10 11 In the present case, the ALJ erred by rejecting Dr. Canchola s 12 opinions while stating legally insufficient reasons for doing so and 13 without attempting to recontact Dr. Canchola. 14 that [t]here is no credible support in the record for assessing the 15 claimant as unable to lift any weight, grasp or manipulate items with 16 the hands is insufficiently specific. 17 849 F.2d at 421 ( To say that the medical opinions are not supported 18 by sufficient objective findings or are contrary to the preponderant 19 conclusions mandated by the objective findings does not achieve the 20 level of specificity our prior cases have required . . . ). 21 stated reason that [t]here are other more persuasive medical source 22 opinions of record is also insufficiently specific. 23 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) ( broad and 24 vague reasons for rejecting the treating physician s opinions do not 25 suffice). 26 opinion by another opinion triggers rather than satisfies the 27 requirement of stating specific legitimate reasons. 28 Valentine v. Commissioner, 574 F.3d 685, 692 (9th Cir. 2009); Orn v. The ALJ s stated reason See, e.g., Embrey v. Bowen, The ALJ s Id.; see also Moreover, the contradiction of a treating physician s 5 See, e.g., 1 Astrue, 495 F.3d at 631-33; Lester v. Chater, 81 F.3d 821, 830-31 (9th 2 Cir. 1995). 3 4 Defendant argues that the ALJ properly rejected Dr. Canchola s 5 opinions because of the paucity of treatment records and the 6 conclusory nature of the opinions. 7 record counsels against affirmance on such grounds, however. 8 should have ascertained from Dr. Canchola the basis for the 9 assessed limitations, including any basis to be found in treatment 10 records. 11 The ALJ s duty to develop the The ALJ See 20 C.F.R. § 404.1512(e); Smolen v. Chater, 80 F.3d at 1288. 12 13 The harmless error rule applies in the social security context. 14 See Stout v. Commissioner, 454 F.3d 1050, 1054 (9th Cir. 2006). 15 However, the potential harmfulness of the errors discussed above are 16 apparent from the circumstances, within the meaning of McLeod v. 17 Astrue, 640 F.3d 881, 887 (9th Cir. 2011). 18 19 When a court reverses an administrative determination, the 20 proper course, except in rare circumstances, is to remand to the 21 agency for additional investigation or explanation. 22 537 U.S. 12, 16 (2002) (citations and quotations omitted). 23 proper where, as here, additional administrative proceedings could 24 remedy the defects in the decision. 25 at 603; see generally Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 26 1984). 27 /// 28 INS v. Ventura, Remand is McAllister v. Sullivan, 888 F.2d The Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 6 1 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ( Harman ) does not 2 compel a reversal rather than a remand of the present case. 3 Harman, the Ninth Circuit stated that improperly rejected medical 4 opinion evidence should be credited and an immediate award of benefits 5 directed where (1) the ALJ has failed to provide legally sufficient 6 reasons for rejecting such evidence, (2) there are no outstanding 7 issues that must be resolved before a determination of disability can 8 be made, and (3) it is clear from the record that the ALJ would be 9 required to find the claimant disabled were such evidence credited. In 10 Harman at 1178 (citations and quotations omitted). Assuming, 11 arguendo, the Harman holding survives the Supreme Court s decision in 12 INS v. Ventura, 537 U.S. at 16,3 the Harman holding does not direct 13 reversal of the present case. 14 Dr. Canchola concerning outstanding issues that must be resolved 15 before a determination of disability can be made. 16 clear from the record that the ALJ would be required to find Plaintiff 17 disabled for the entire claimed period of disability were the opinions 18 of Dr. Canchola credited. 19 (remand rather than reversal where the improperly rejected treating 20 physician opinion failed to identify a disability onset date). 21 /// 22 /// 23 /// Here, the Administration must recontact Further, it is not See Luna v. Astrue, 623 F.3d at 1035 24 25 CONCLUSION 26 3 27 28 The Ninth Circuit has continued to apply Harman despite INS v. Ventura. See Luna V. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010); Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2009); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 7 1 For all of the foregoing reasons,4 Plaintiff s and Defendant s 2 motions for summary judgment are denied and this matter is remanded 3 for further administrative action consistent with this Opinion. 4 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 7 DATED: May 31, 2012. 8 9 ____________/S/________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4 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 immediate payment of benefits would not be appropriate at this time. 8

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