Delois Gallien v. Michael J Astrue, No. 2:2012cv01246 - Document 18 (C.D. Cal. 2012)

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 17 DELOIS GALLIEN, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY, ) ) ) Defendant. ) ) ___________________________________) NO. CV 12-1246-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 21 judgment are denied and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on February 17, 2012, seeking review 27 of the Commissioner s denial of disability benefits. The parties 28 filed a consent to proceed before a United States Magistrate Judge on 1 March 26, 2012. Plaintiff filed a motion for summary judgment on 2 August 8, 2012. Defendant filed a cross-motion for summary judgment 3 on September 10, 2012. 4 submission without oral argument. 5 February 22, 2012. The Court has taken the motions under See L.R. 7-15; Order, filed 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 9 Plaintiff, a former home health aide, asserts disability since 10 September 30, 2008, based on alleged heart problems (Administrative 11 record ( A.R. ) 100-06, 120, 124, 143-44). 12 mr [mitral regurgitation,] tr [tricuspid regurgitation,] mitral valve 13 prolapse[,] s and p [status post] mv [mitral valve] replacement, 14 which assertedly causes her to have shortness of breath and problems 15 breathing (A.R. 143-44; see also A.R. 379 (medical record containing 16 diagnoses)).1 Plaintiff alleges severe 17 18 The ALJ found the following severe impairments: history of 19 congestive heart failure, status post mitral valve replacement, and 20 low back pain (A.R. 13). 21 impairments, Plaintiff retains the residual functional capacity to 22 perform medium work with some postural and environmental limitations, 23 and can perform her past relevant work (A.R. 14-16 (adopting 24 consultative examiner s opinion at A.R. 187-88, and vocational expert 25 testimony at A.R. 39, 41-42)). The ALJ found that, despite these The Appeals Council denied review 26 1 27 28 The definitions for medical abbreviations and medical terms noted herein in brackets are derived either from the record as cited, or from a medical dictionary available online at http://www.medilexicon.com (last visited Sept. 25, 2012). 2 1 (A.R. 1-3). 2 3 STANDARD OF REVIEW 4 5 Under 42 U.S.C. section 405(g), this Court reviews the 6 Administration s decision to determine if: (1) the Administration s 7 findings are supported by substantial evidence; and (2) the 8 Administration used proper legal standards. 9 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, See Carmickle v. 10 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is such 11 relevant evidence as a reasonable mind might accept as adequate to 12 support a conclusion. 13 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 14 F.3d 1063, 1067 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 15 16 DISCUSSION 17 18 19 I. Summary of the Medical Record Concerning Plaintiff s Heart Condition. 20 21 Plaintiff was treated at Harbor UCLA Medical Center Cardiology 22 Clinic and the Hubert H. Humphrey Comprehensive Health Center. 23 A.R. 161, 178-82, 214-424, 427-49, 451-52, 455-57, 459-71 (medical 24 records); see also A.R. 29 (testimony). 25 doctors diagnosed, inter alia, congestive heart failure and atrial 26 fibrillation (A.R. 235-36, 375-79). 27 replacement for mitral regurgitation on January 22, 2008 (A.R. 379). 28 3 See In or about January 2008, Plaintiff underwent mitral valve 1 Consulting examiner Dr. Sohelia Benrazavi provided a Complete 2 Internal Medicine Evaluation for Plaintiff dated June 9, 2009 (A.R. 3 183-88). 4 not review any medical records from other physicians (A.R. 187). 5 Plaintiff complained to Dr. Benrazavi of congestive heart failure, 6 diabetes, and back pain, and said she tires easily and has shortness 7 of breath (A.R. 183-84). 8 heart sounds but no evidence of cardiomegaly [enlarged heart] (A.R. 9 185, 187). In the course of making this evaluation, Dr. Benrazavi did On examination, Plaintiff had metallic An EKG showed sinus bradycardia at a rate of 59 beats per 10 minute but no signs of ischemia [restriction in blood supply] (A.R. 11 187). 12 work with climbing and stooping limitations (A.R. 187-88). 13 agency physician Dr. J. Akers reviewed Dr. Benrazavi s evaluation and 14 completed a Physical Residual Functional Capacity Assessment form, 15 also opining that Plaintiff is capable of medium work (A.R. 190-98). Dr. Benrazavi opined that Plaintiff would be capable of medium State 16 17 When Plaintiff presented to the Cardiology Clinic for a follow up 18 visit on August 28, 2009, she reported doe [Dyspnea on Exertion, or 19 shortness of breath] with two blocks of walking, and steady 2 pillow 20 orthopnea [discomfort in breathing from lying flat].2 Plaintiff s 21 22 23 24 25 26 27 28 2 In an exertion questionnaire dated May 18, 2009, Plaintiff reported that she lives with family and does household chores, such as dusting, washing dishes or folding clothing, all while sitting down (A.R. 136-37). Plaintiff said she tries to walk every day but has to rest and use a cane (A.R. 136). She said it takes her an hour to walk long blocks (A.R. 136). Plaintiff reported having to rest after showering and eating breakfast because she gets tired very easily and has shortness of breath (A.R. 136). Plaintiff asserted she had not lifted things since her surgery in 2008 (A.R. 137). Plaintiff reportedly could not stoop, bend, or lift because she gets shortness of breath and (continued...) 4 1 treating physician, Dr. Arsen Hovanesyan, noted Class II (A.R. 429). 2 Dr. Hovanesyan s impression was s/p MVR [status post mitral valve 3 replacement] and a-fib [atrial fibrillation], and his plan was to 4 have Plaintiff continue her current medications (A.R. 429). 5 returned on March 9, 2010, reporting increased doe over the past 6 month (A.R. 428). 7 Class II before) (id.). 8 undergo further testing to evaluate Plaintiff s mitral valve in one to 9 two months (A.R. 428). Plaintiff Dr. Hovanesyan noted Class II-III symptoms (was Dr. Hovanesyan planned for Plaintiff to Plaintiff returned on July 2, 2010, reporting 10 that she feels well with no complaints, is able to do ADL s 11 [activities of daily living], but has doe with more exertion and no 12 cp [chest pain] (A.R. 427). 13 stated, inter alia, suspect ? diastolic dysfn [dysfunction], NYHA 14 II, and indicated that Plaintiff should continue her current regimen 15 (A.R. 427). Upon examination, Dr. Hovanesyan 16 17 Dr. Hovanesyan s Class II, Class II-III, and NYHA II, 18 notations refer to the New York Heart Association Functional 19 Classification of heart failure. 20 3637923, at *5 n.3 (E.D. Cal. Aug. 22, 2012) (discussing 21 classifications); Feskens v. Astrue, 804 F. Supp. 2d 1105, 1120 (D. 22 Or. 2011) (same); see also Brawders v. Astrue, 793 F. Supp. 2d 485, 23 493-94 (D. Mass. 2011) (same). 24 heart failure according to the severity of their symptoms. . . . [The 25 New York Heart Association (NYHA) Functional Classification] places See Swortfiguer v. Astrue, 2012 WL Doctors usually classify patients 26 27 28 2 (...continued) tires easily (A.R. 138; see also A.R. 27-30, 34-37 (Plaintiff testifying similarly)). 5 1 patients in one of four categories based on how much they are limited 2 during physical activity. 3 Heart Failure, available online at http://www.heart.org/HEARTORG/ 4 Conditions/HeartFailure/AboutHeartFailure/Classes-of-Heart-Failure_UCM 5 _306328_Article.jsp (last visited Sept. 26, 2012).3 6 Class II and Class II-III notations indicate slight to marked 7 functional limitations. 8 /// 9 /// 10 /// 11 /// American Heart Association, Classes of Dr. Hovanesyan s Id. 12 13 3 14 Class I Patients with cardiac disease but resulting in no limitation of physical activity. Ordinary physical activity does not cause undue fatigue, palpitation, dyspnea or anginal pain. Class II Patients with cardiac disease resulting in slight limitation of physical activity. They are comfortable at rest. Ordinary physical activity results in fatigue, palpitation, dyspnea or anginal pain. The categories are: 15 16 17 18 19 20 Class III Patients with cardiac disease resulting in marked limitation of physical activity. They are comfortable at rest. Less than ordinary activity causes fatigue, palpitation, dyspnea or anginal pain. 21 22 23 24 Class IV 25 26 27 28 Patients with cardiac disease resulting in inability to carry on any physical activity without discomfort. Symptoms of heart failure or the anginal syndrome may be present even at rest. If any physical activity is undertaken, discomfort increases. Id. 6 1 II. 2 The ALJ Erred in the Evaluation of Evidence from Plaintiff s Treating Physician. 3 4 In determining Plaintiff s residual functional capacity, the ALJ 5 did not discuss Dr. Hovanesyan s treatment records beyond referencing 6 Plaintiff s indication that she feels well and can do activities of 7 daily living. 8 NYHA classifications (id.). See A.R. 15. The ALJ did not mention Dr. Hovanesyan s 9 10 A treating physician s conclusions must be given substantial 11 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 12 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ( the ALJ must 13 give sufficient weight to the subjective aspects of a doctor s opinion 14 . . . 15 physician ) (citation omitted); see also Orn v. Astrue, 495 F.3d 625, 16 631-33 (9th Cir. 2007) (discussing deference owed to treating 17 physician opinions). 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). 7 1 evidence ) (citation and quotations omitted). 2 3 In the present case, the ALJ appears to have ignored or 4 implicitly rejected Dr. Hovanesyan s opinion concerning Plaintiff s 5 functional limitations without articulating specific, legitimate 6 reasons for doing so. 7 treating physicians (A.R. 15-16). 8 treating physician s opinion by another physician s opinion triggers 9 rather than satisfies the requirement of stating specific, legitimate The ALJ cited the contrary opinions of nonHowever, the contradiction of a 10 reasons. See, e.g., Valentine v. Commissioner, 574 F.3d 685, 692 11 (9th Cir. 2009); Orn v. Astrue, 495 F.3d at 631-33; Lester v. Chater, 12 81 F.3d 821, 830-31 (9th Cir. 1995). 13 Dr. Hovanesyan s opinion concerning Plaintiff s limitations was in 14 error. 15 2007) ( The decision of the ALJ fails . . . 16 ignores or neglects to mention a treating physician s medical opinion 17 that is relevant to the medical evidence being discussed. ) (citations 18 omitted); Carter v. Astrue, 308 Fed. App x 75, 76 (9th Cir. Jan. 8, 19 2009) (ALJ s failure to mention treating physician s findings was 20 erroneous in light of the ALJ s obligation to explain why significant 21 probative evidence has been rejected) (citations omitted).5 The ALJ s failure to acknowledge See Lingenfelter v. Astrue, 504 F.3d 1028, 1045 (9th Cir. when the ALJ completely 22 23 The ALJ s error in failing to account for Dr. Hovanesyan s 24 classifications may have been material. The residual functional 25 capacity the ALJ adopted, which appears to have been based on the 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). 8 1 consultative examiner s opinion, did not address these 2 classifications. 3 Hovanesyan s notes and did not involve any record review. 4 187-88 (consultative examiner s report). 5 did not offer an opinion concerning Plaintiff s NYHA classification. 6 See id. The consultative examiner s opinion predated Dr. See A.R. The consultative examiner 7 8 9 Absent expert assistance, the ALJ could not competently translate Dr. Hovanesyan s classifications into a residual functional capacity 10 assessment. It is well-settled that an ALJ may not render his or her 11 own medical opinion or substitute his or her own diagnosis for that of 12 a claimant s physician. 13 (9th Cir. 1999) (ALJ erred in rejecting physicians opinions and 14 finding greater residual functional capacity based on claimant s 15 testimony about a road trip; there was no medical evidence to support 16 the ALJ s determination); Day v. Weinberger, 522 F.2d 1154, 1156 (9th 17 Cir. 1975) (an ALJ is forbidden from making his own medical assessment 18 beyond that demonstrated by the record); Balsamo v. Chater, 142 F.3d 19 75, 81 (2d Cir. 1998) (an ALJ cannot arbitrarily substitute his own 20 judgment for competent medical opinion ) (internal quotation marks and 21 citation omitted); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) 22 ( ALJs must not succumb to the temptation to play doctor and make 23 their own independent medical findings ). 24 believed a particular residual functional capacity assessment would 25 account for the NYHA limitations, the ALJ should have called on an 26 expert to provide competent evidence on such issues. 27 Astrue, 2012 WL 43622, at *10 (E.D. Cal. Jan. 9, 2012) (ALJ relied on 28 medical expert to translate NYHA classification into residual See Tackett v. Apfel, 180 F.3d 1094, 1102-03 9 In this case, if the ALJ Compare Diaz v. 1 functional capacity; expert testified that Class III level signifies 2 capacity for sedentary work only, and Class II precludes heavy work 3 only); see also Brawders v. Astrue, 793 F. Supp. 2d at 494 (concluding 4 that ALJ was not qualified to translate NYHA Class II criteria into an 5 actual residual functional capacity; without a medical source 6 statement of the claimant s ability to function, substantial evidence 7 did not support ALJ s finding that the claimant could do light work). 8 9 Defendant argues that Dr. Hovanesyan never actually made a NYHA 10 classification diagnosis. See Defendant s Motion, p. 2. According to 11 Defendant, Dr. Hovanesyan was simply reporting Plaintiff s subjective 12 complaints rather than offering any opinion regarding Plaintiff s 13 medical condition. 14 treatment notes, which include findings on examination and testing, 15 that the doctor was simply reporting Plaintiff s subjective complaints 16 when stating the NYHA classifications. 17 have contacted Dr. Hovanesyan to clarify the intendment of the 18 doctor s NYHA statements. 19 fairly develop the record and to assure that the claimant s interests 20 are considered. 21 represented by counsel. 22 Cir. 1983). 23 Administration will seek additional evidence or clarification from 24 your medical source when the report from your medical source contains 25 a conflict or ambiguity that must be resolved, the report does not 26 contain all of the necessary information, or does not appear to be 27 based on medically acceptable clinical and laboratory diagnostic 28 techniques. However, it is not clear from Dr. Hovanesyan s At a minimum, the ALJ should The ALJ has a special duty to fully and This duty exists even when the claimant is Brown v. Heckler, 713 F.2d 441, 443 (9th Section 404.1512(e) of 20 C.F.R. provides that the See Smolen v. Chater, 80 F.3d at 1288 ( If the ALJ 10 1 thought he needed to know the basis of Dr. Hoeflich s opinions in 2 order to evaluate them, he had a duty to conduct an appropriate 3 inquiry, for example, by subpoenaing the physicians or submitting 4 further questions to them. 5 to augment the record ) (citations omitted). He could also have continued the hearing 6 7 III. Remand is Appropriate. 8 9 When a court reverses an administrative determination, the 10 proper course, except in rare circumstances, is to remand to the 11 agency for additional investigation or explanation. 12 537 U.S. 12, 16 (2002) (citations and quotations omitted). 13 the circumstances of the case suggest that further administrative 14 review could remedy the ALJ's errors, remand is appropriate. 15 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011). INS v. Ventura, Because McLeod 16 17 The Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 18 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ( Harman ) does not 19 compel a reversal directing the payment of benefits. 20 Ninth Circuit stated that improperly rejected medical opinion evidence 21 should be credited and an immediate award of benefits directed where 22 (1) the ALJ has failed to provide legally sufficient reasons for 23 rejecting such evidence, (2) there are no outstanding issues that must 24 be resolved before a determination of disability can be made, and 25 (3) it is clear from the record that the ALJ would be required to find 26 the claimant disabled were such evidence credited. 27 (citations and quotations omitted). 28 holding survives the Supreme Court s decision in INS v. Ventura, 537 11 In Harman, the Harman, at 1178 Assuming, arguendo, the Harman 1 U.S. at 16,6 the Harman holding does not direct reversal of the 2 present case. 3 treating physician or obtain expert testimony concerning outstanding 4 issues that must be resolved before a determination of disability can 5 be made. 6 be required to find Plaintiff disabled for the entire period of 7 claimed disability were the opinions of Dr. Hovanesyan credited. Here, the Administration must recontact Plaintiff s Further, it is not clear from the record that the ALJ would 8 9 CONCLUSION 10 11 For all of the foregoing reasons,7 Plaintiff s and Defendant s 12 motions for summary judgment are denied and this matter is remanded 13 for further administrative action consistent with this Opinion. 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. 16 17 DATED: October 1, 2012. 18 19 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 6 The Ninth Circuit has continued to apply Harman despite INS v. Ventura. See Luna V. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). 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. 12

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