Stephen Prince v. Michael J Astrue, No. 2:2011cv09576 - Document 17 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. Accordingly, the decision of the Commissioner is reversed; and this action is remanded for further proceedings consistent with this opinion and order. (twdb)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 WESTERN DIVISION 8 9 STEPHEN PRINCE, 10 Plaintiff, 11 v. 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-9576-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Stephen David Prince seeks judicial review of the 18 Commissioner s denial of his application for disability insurance 19 benefits ( DIB ) and Supplemental Security Income ( SSI ) benefits 20 under the Social Security Act. For the reasons discussed below, the 21 Commissioner s decision is reversed, and this action is remanded 22 for further proceedings. 23 24 I. BACKGROUND 25 Plaintiff was born on January 13, 1956. (Administrative Record 26 ( AR ) at 14.) He has work experience as a detailer, firefighter, 27 maintenance 28 cleaner, mechanical technician, and auto body repairer. (AR at 47.) worker, roustabout, 1 construction laborer, carpet 1 Plaintiff filed his applications for benefits on January 13, 2009, 2 alleging disability beginning November 10, 2007, due to an injured 3 left shoulder and arthritis in the neck and spine. (AR at 10, 56.) 4 The Social Security Administration denied Plaintiff s applications 5 initially on June 15, 2009, and upon reconsideration on October 1, 6 2009. (AR at 10.) 7 A video-conferenced administrative hearing was held before 8 Administrative Law Judge ( ALJ ) Dale A. Garwal on December 10, 9 2010. (AR at 10.) Plaintiff, who was represented by counsel, 10 testified at the hearing, as did a vocational expert ( VE ). (AR at 11 10.) 12 Plaintiff s application. (AR at 10-15.) The ALJ determined that 13 although Plaintiff suffers from chronic degenerative disc disease 14 and cervical spine with radiculopathy, he has the residual 15 functional capacity ( RFC ) to perform a limited range of light 16 work activity. (AR at 13.) Specially, the ALJ found that Plaintiff 17 can: sit 6 hours of an 8 hour day; stand 6 hours of an 8 hour day; 18 lift 10 pounds frequently, 20 pounds occasionally; occasionally 19 bend or stoop; and occasionally use dominant left upper extremity 20 to perform overhead work. (AR at 13.) The ALJ found that while 21 Plaintiff is unable to perform any past relevant work, there are 22 jobs that exist in significant numbers in the national economy that 23 he can perform. (AR at 14.) The Appeals Council denied review on 24 September 17, 2011. (AR at 1.) On January 7, 2011, the ALJ issued a decision denying 25 Plaintiff commenced this action for judicial review, and the 26 parties filed a Joint Stipulation ( Joint Stip. ) of disputed facts 27 and issues on July 11, 2012. Plaintiff contends that the ALJ erred 28 in five respects: (1) he improperly rejected the opinion of 2 1 Plaintiff s 2 supported by substantial evidence; (3) he improperly assessed 3 Plaintiff s credibility; (4) he failed to properly develop the 4 record by pursuing all relevant evidence; and (5) he failed to 5 properly inquire into conflicts between the VE s testimony and the 6 Dictionary 7 Plaintiff seeks remand for the payment of benefits or, in the 8 alternative, remand for further administrative proceedings. (Joint 9 Stip. at 40-41.) Defendant requests that the ALJ s decision be 10 affirmed or, if the Court finds that the ALJ committed reversible 11 error, 12 proceedings. (Joint Stip. at 41.) treating of that physician; Occupational the Court (2) Titles remand his (the for RFC finding DOT ). further (AR is at not 3-4.) administrative 13 14 II. STANDARD OF REVIEW 15 Under 42 U.S.C. § 405(g), a district court may review the 16 Commissioner s decision to deny benefits. The Commissioner s or 17 ALJ s decision must be upheld unless the ALJ s findings are based 18 on legal error or are not supported by substantial evidence in the 19 record as a whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 20 1990); 21 Substantial evidence means such evidence as a reasonable person 22 might accept as adequate to support a conclusion. Richardson v. 23 Perales, 402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 24 1063, 1066 (9th Cir. 2006). It is more than a scintilla, but less 25 than a preponderance. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 26 882 (9th Cir. 2006). To determine whether substantial evidence 27 supports 28 administrative record as a whole, weighing both the evidence that Parra a v. Astrue, finding, the 481 F.3d 742, reviewing 3 746 court (9th must Cir. 2007). review the 1 supports and the evidence that detracts from the Commissioner s 2 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). 3 If the evidence can support either affirming or reversing the 4 ALJ s conclusion, the reviewing court may not substitute its 5 judgment for that of the ALJ. Robbins, 466 F.3d at 882. 6 7 III. DISCUSSION 8 A. The ALJ Failed to Give Appropriate Weight to the Opinion of 9 Plaintiff s Treating Physician 10 Plaintiff contends that the ALJ improperly rejected the work- 11 related 12 treating physician, in finding that Plaintiff was not disabled. 13 (Joint Stip. at 4-8). Dr. Bhat saw Plaintiff nine times between 14 January 3, 2008 and July 23, 2010, mostly for his neck and left 15 shoulder pain (AR at 187-217). Dr. Bhat found that Plaintiff would 16 be unable to do even light or sedentary work, including watching 17 video screen monitors, as turning his neck and prolonged flexion 18 and extension positions cause him severe pain. (AR at 271.) He also 19 found that Plaintiff would only be able to stand/walk for up to two 20 hours, and to sit between two and four hours, in an eight hour 21 workday. (AR at 248.) He noted that Plaintiff is on chronic pain 22 medications that are only of very little help to him. (AR at 271.) 23 The Commissioner is directed to weigh medical opinions based limitations assessed by Bala Bhat, M.D., Plaintiff s 24 in 25 treating, examining, or non-examining professionals. Lester v. 26 Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Generally, more weight 27 is given to the opinion of a treating professional, who has a 28 greater part on their opportunity source, to specifically, know and 4 observe whether the proffered patient as by an 1 individual, than the opinion of a non-treating professional. See 2 id.; 3 Similarly, more weight is generally given to the opinion of a 4 source who has examined the patient than someone who has not done 5 so. 20 CFR § 404.1527(d)(1). Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 6 The Commissioner must also consider whether a medical opinion 7 is supported by clinical findings and is contradicted by other 8 medical evidence in the record. The Commissioner may reject the 9 uncontradicted opinion of a treating or examining medical 10 professional only for clear and convincing reasons supported by 11 substantial evidence in the record. See Lester, 81 F.3d at 831. A 12 contradicted opinion of a treating or examining professional may be 13 rejected only for specific and legitimate reasons supported by 14 substantial evidence. 15 professional s 16 professional s opinion, which is supported by different independent 17 clinical findings, the Commissioner may resolve the conflict by 18 relying on the latter. See Andrews v. Shalala, 53 F.3d 1035, 1041 19 (9th Cir. 1995); see also Orn v. Astrue, 495 F.3d 625, 632 (9th 20 Cir. 2007) (ALJ may reject opinion of treating physician in favor 21 of examining physician whose opinion rests on independent clinical 22 findings). 23 The ALJ Lester, 81 F.3d at 830. If a treating opinion rejected is Dr. contradicted Bhat s opinion by as an to examining Plaintiff s 24 limitations, but failed to state adequate reasons for doing so. (AR 25 at 14.) First, the ALJ stated that the extreme limitations found 26 by Dr. Bhat are not supported by the treatment records. In doing 27 so, the ALJ noted that there is no evidence of herniation, nerve 28 compression or severe stenosis, and that Plaintiff has not had 5 1 surgery or injections. (AR at 13.) On the contrary, the medical 2 record does contain such evidence. An MRI taken on February 4, 3 2009, showed that Plaintiff suffers from severe and moderate 4 stenosis 5 Additionally, Dr. Bhat states in a December 6, 2010 letter that 6 Plaintiff was receiving pain injections from a pain specialist. (AR 7 at 271.) Moreover, the treatment records reflect that Plaintiff 8 consistently 9 prescribed strong pain medications. (AR at 187-217.) In light of 10 this evidence, the ALJ s rejection of Dr. Bhat s findings is not 11 supported by substantial evidence. in several had places complaints on his of neck spine. pain (AR and at was 179-80.) repeatedly 12 The ALJ s second reason for rejecting Dr. Bhat s opinion, that 13 Plaintiff only had minimal treatment over the years, is not 14 substantially 15 evidence that Plaintiff could not afford to see a medical provider 16 more frequently. See Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007) 17 ( [d]isability 18 claimant's failure to obtain treatment he cannot obtain for lack of 19 funds ) (quoting Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 20 1995)); Smolen, 80 F.3d 1273 at 184. Plaintiff testified that he 21 did not have insurance coverage for therapy, (AR at 36-38), and 22 there was additional evidence that he could not afford surgery or 23 other procedures apparently discussed with Dr. Bhat. (AR at 189, 24 198.) Given that Plaintiff saw Dr. Bhat multiple times over a two- 25 and-a-half 26 treatment, it was error for the ALJ to rely on the lack of 27 additional treatment as a reason for rejecting Dr. Bhat s opinion. 28 // supported year benefits period either may and because not could 6 be not there denied afford was significant because more of the extensive 1 Third, the ALJ found that Dr. Bhat s opinion that Plaintiff 2 would be unable to perform a job that required watching a video 3 screen was not credible in light of [Plainitiff s] testimony that 4 this daily activities include watching television. (AR at 14.) The 5 ALJ s 6 Plaintiff s capacity to watch video screens, but also his opinion 7 as 8 throughout a workday. (AR at 13, 258.) RFC to rejected plaintiff s not ability only to Dr. lift Bhat s weight opinion and sit regarding and stand 9 Plaintiff s ability to watch TV does not appear to have a 10 bearing on these other aspects of Dr. Bhat s opinion, and thus does 11 not constitute a legitimate reason for rejecting them. Furthermore, 12 Plaintiff clarified in his testimony that he reclines while he is 13 seated at home, rather than maintaining an upright seated position. 14 (AR at 40-43.) Dr. Bhat s opinion that Plaintiff would be unable to 15 do work involving watching video screen monitors, a task presumably 16 performed while sitting upright, because of his inability to turn 17 his neck or maintain certain positions is not inconsistent with 18 Plaintiff s testimony that he watches TV from a reclining position. 19 Finally, the ALJ rejected Dr. Bhat s opinion because Dr. Bhat 20 is not an orthopedic or pain management specialist, but rather an 21 internist, who is trained in the prevention and treatment of adult 22 diseases. (AR at 14.) Examining physician Dale H. Van Kirk, MD, 23 whose findings were specifically adopted by the ALJ, is a board 24 certified orthopedist.1 (AR at 184-85.) 25 26 1 27 28 Dr. Van Kirk found that Plaintiff could stand or walk 6 hours out of an 8-hour day, if allowed to sit 5-10 minutes every hour, had no limitations in sitting, and could frequently lift 25 pounds and occasionally 50 pounds. (AR 184.) 7 1 The regulations provide that generally more weight is given to 2 the opinion of a specialist on medical issues related to his or her 3 area of specialty. 20 CFR § 404.1527(c)(2)(ii)(5). Holohan v. 4 Massanari, 246 F.3d 1195, 1202 03, n. 2 (9th Cir. 2001) (a treating 5 physician s opinion may be entitled to little weight on a matter 6 not 7 regulations do not specify, however, how to resolve the tension 8 between the rule giving deference to specialists and the rule 9 regarding giving greater weight to the opinion of a treating 10 physician over examining or consulting physicians. See generally 20 11 CFR § 404.1527(c); see also Yang v. Barnhart, No. 04-958, 2006 WL 12 3694857 at *3 (C.D. Cal. Dec. 12, 2006) (noting that we have two 13 competing rules in play ). In at least one decision, the Ninth 14 Circuit has found that it was improper for the ALJ to have based 15 his rejection of the treating physician s opinion on the ground 16 that he was not a specialist in the area for which he treated 17 plaintiff. See Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1996). 18 Here, Dr. Bhat s training as an internist encompasses the ability 19 to generally diagnose and treat adult disease, and therefore his 20 practice is not wholly unrelated to Plaintiff s type of injury. 21 Given this fact and the ambiguity regarding the weight properly 22 accorded to treating physicians as compared to specialists, the 23 Court finds that Dr. Bhat s lack of certification in orthopedics 24 does not on its own constitute a specific and legitimate reason for 25 rejecting his opinion. As the other three reasons provided by the 26 ALJ 27 substantial evidence, the ALJ has failed to state adequate reasons 28 for rejecting Dr. Bhat s opinion. related for to his rejecting or Dr. her area Bhat s of opinion 8 specialization. ). are not supported The by 1 B. The ALJ Improperly Evaluated Plaintiff s Credibility 2 Plaintiff contends that the ALJ failed to properly evaluate 3 his credibility. At the hearing, Plaintiff testified that he sits 4 and reclines most of the day, that his neck and shoulder ache 5 constantly and his neck pain has been getting worse, that he has 6 severe headaches on a daily basis that last from 8 to 12 hours, and 7 that medicine does not significantly relieve his pain. (AR at 36- 8 48.) 9 To determine whether a claimant's testimony about subjective 10 pain or symptoms is credible, an ALJ must engage in a two-step 11 analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) 12 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 13 2007)). First, the ALJ must determine whether the claimant has 14 presented objective medical evidence of an underlying impairment 15 which could reasonably be expected to produce the alleged pain or 16 other 17 claimant produces objective medical evidence of an underlying 18 impairment, an adjudicator may not reject a claimant's subjective 19 complaints based solely on a lack of objective medical evidence to 20 fully 21 Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). To the 22 extent that an individual's claims of functional limitations and 23 restrictions due to symptoms are reasonably consistent with the 24 objective medical evidence and other evidence in the case, the 25 claimant's allegations will be credited. SSR 96-7p, 1996 WL 374186 symptoms. Lingenfelter, corroborate the alleged 504 F.3d severity 26 27 28 9 at of 1036. pain. [O]nce Bunnell the v. 1 at *2 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)).2 2 When there is no affirmative evidence showing that the 3 claimant is malingering, the ALJ must provide specific, clear and 4 convincing 5 Robbins, 466 F.3d at 883. General findings are insufficient; 6 rather, the ALJ must identify what testimony is not credible and 7 what evidence undermines the claimant's complaints. Reddick, 157 8 F.3d at 722 (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 9 1996)). reasons The ALJ for must discrediting consider a a claimant's claimant's complaints. work record, 10 observations of medical providers and third parties with knowledge 11 of 12 restrictions caused by symptoms, effects of medication, and the 13 claimant's daily activities. Smolen v. Chater, 80 F.3d 1273, 14 1283-84 & n.8 (9th Cir. 1996). The ALJ may also consider an 15 unexplained failure to seek treatment or follow a prescribed course 16 of treatment and employ other ordinary techniques of credibility 17 evaluation. Id. (citations omitted). 18 claimant's Here, the limitations, ALJ aggravating concluded that factors, Plaintiff s functional medically 19 determinable impairments could reasonably be expected to cause some 20 of the alleged symptoms. (AR at 20.) However, the ALJ rejected 21 Plaintiff's statements concerning the intensity, persistence and 22 limiting 23 inconsistent with the RFC allowing for the performance of a limited effects of these symptoms to the extent they are 24 25 26 27 28 2 The Secretary issues Social Security Rulings to clarify the Secretary's regulations and policy .... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary's interpretation of its regulations. Bunnell, 947 F.2d at 346 n.3. 10 1 range of light work activity. (AR at 13.) As there was no evidence 2 of 3 convincing reasons for rejecting Plaintiff s testimony. malingering, the ALJ was required to provide clear and 4 The ALJ provided two reasons for rejecting this testimony. 5 First, he found that Plaintiff had received only conservative 6 treatment. Specifically, he noted that: (1) Plaintiff had not had 7 surgery or injections or seen specialists; (2) there was no 8 evidence of herniation, nerve compression or severe stenosis; and 9 (3) had doctor visits only every couple of months for medication 10 refills, without any emergency room or urgent care visits. [A]n 11 unexplained, or inadequately explained, failure to seek treatment 12 may be the basis for an adverse credibility finding unless one of 13 a number of good reasons for not doing so applies. Orn v. Astrue, 14 495 F.3d 625, 638 (9th Cir. 2007) (internal citations and quotation 15 marks 16 treatment is the inability to afford it. Id. As discussed above, 17 there was evidence here that although surgery and other options 18 were discussed with his treating physician Dr. Bhat, Plaintiff 19 could not afford this additional treatment. (AR at 36-38, 189, 20 198.) Furthermore, as also addressed above, there is objective 21 evidence in the record showing that Plaintiff does suffer from 22 severe stenosis and has had injections. (AR at 179-80, 271.) 23 Accordingly, the ALJ's reliance on this reason for his adverse 24 credibility finding was improper. omitted). One such good reason for failing to seek 25 Next, the ALJ discredited Plaintiff s symptom testimony based 26 on his daily activities. A disability claimant's daily activities 27 may be grounds for an adverse credibility finding if a claimant is 28 able to spend a substantial part of his day engaged in pursuits 11 1 involving the 2 transferable to a work setting. Orn, 495 F.3d at 639 (internal 3 quotation marks omitted). Here, the ALJ noted that Plaintiff had 4 testified that he sits most of the day, vacuums, goes grocery 5 shopping, watches television, and cooks a little. (AR at 13.) 6 These 7 Plaintiff s testimony regarding his abilities. Furthermore, the 8 record clarifies that these activities are done on a limited basis 9 and while in pain. Plaintiff testified that most of the time he is 10 sitting, it is in a reclining position, and that he experiences 11 constant discomfort in his neck. (AR at 41, 43.) Additionally, 12 Plaintiff testified that he vacuums only occasionally. (AR at 39.) 13 When he does perform an activity such as vacuuming or cooking, he 14 pay[s] for it and needs to rest immediately following it. (AR at 15 39, 16 incapacitated does not prevent a finding of disability nor render 17 his testimony not credible. See Vertigan v. Halter, 260 F.3d 1044, 18 1050 (9th Cir. 2001) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th 19 Cir. 1989) (One does not need to be utterly incapacitated in 20 order to be disabled). limited 44.) In performance activities, short, the of physical however, fact that are functions not Plaintiff that inconsistent is not are with utterly 21 22 23 IV. CONCLUSION As a general rule, remand is warranted where additional 24 administrative 25 Commissioner's decision. See Harman v. Apfel, 211 F.3d 1172, 1179 26 (9th Cir. 2000). In this case, remand for a new hearing is 27 appropriate to properly consider the opinions of Dr. Bhat and proceedings could 28 12 remedy defects in the 1 Plaintiff s testimony, and to fully develop the record.3 2 Accordingly, the decision of the Commissioner is reversed; and 3 this action is remanded for further proceedings consistent with 4 this opinion and order. 5 6 Dated: August 1, 2012 7 8 ______________________________ Marc L. Goldman United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 As the Court has elected to remand this case based on the two legal errosr discussed above, the other three claims of error will not be addressed. 13

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