Keith Fergins v. Michael J Astrue, No. 2:2012cv01989 - Document 20 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Keith Fergins filed this action on March 9, 2012. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on March 28 and April 12, 2012. (Dkt. Nos. 7, 13.) On September 25, 2012, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The court has taken the matter under submission without oral argument. Having reviewed the entire file, the court re verses and remands the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded for further proceedings for the period beginning January 5, 2009, consistent with this opinion. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KEITH FERGINS, 12 Plaintiff, 13 v. 14 15 16 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 12-1989 AGR MEMORANDUM OPINION AND ORDER Plaintiff Keith Fergins filed this action on March 9, 2012. Pursuant to 28 19 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on 20 March 28 and April 12, 2012. (Dkt. Nos. 7, 13.) On September 25, 2012, the 21 parties filed a Joint Stipulation ( JS ) that addressed the disputed issues. The 22 court has taken the matter under submission without oral argument. 23 24 25 26 27 28 Having reviewed the entire file, the court reverses and remands the decision of the Commissioner. 1 I. 2 PROCEDURAL BACKGROUND 3 On March 31, 2007, Fergins filed an application for supplemental security 4 income and alleged a disability onset date of July 26, 2000. Administrative 5 Record ( AR ) 9, 226-32. The application was denied. AR 9, 107. Fergins 6 requested a hearing before an Administrative Law Judge ( ALJ ). AR 127. On 7 November 14, 2008, the ALJ conducted a hearing at which Fergins and a 8 vocational expert ( VE ) testified. AR 69-106. On December 18, 2008, the ALJ 9 issued a decision denying benefits. AR 108-18. Fergins filed a request for 10 review. On May 28, 2009, the matter was remanded by the Appeals Council, 11 which directed the ALJ to obtain updated medical treatment records, further 12 evaluate Fergins subjective complaints, give further consideration to Fergins 13 residual functional capacity ( RFC ) and, if warranted, obtain supplemental 14 evidence from a VE. AR 161. 15 On January 4, 2010, the ALJ conducted a second hearing and heard brief 16 testimony from Fergins. AR 60-68. The ALJ continued the hearing and ordered 17 an orthopedic consultative examination for Fergins. AR 9, 66-67. 18 On June 22, 2010, the ALJ conducted a third hearing at which Fergins, a 19 VE and a medical expert ( ME ) testified. AR 23-58. On August 17, 2010, the 20 ALJ issued a decision denying benefits. AR 6-17. On January 30, 2012, the 21 Appeals Council denied Fergins request for review. AR 1-5. This action 22 followed. 23 II. 24 STANDARD OF REVIEW 25 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 26 decision to deny benefits. The decision will be disturbed only if it is not supported 27 by substantial evidence, or if it is based upon the application of improper legal 28 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 2 1 2 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). Substantial evidence means more than a mere scintilla but less than a 3 preponderance it is such relevant evidence that a reasonable mind might 4 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 5 determining whether substantial evidence exists to support the Commissioner s 6 decision, the court examines the administrative record as a whole, considering 7 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 8 evidence is susceptible to more than one rational interpretation, the court must 9 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 10 III. 11 DISCUSSION 12 A. 13 A person qualifies as disabled, and thereby eligible for such benefits, only 14 if his physical or mental impairment or impairments are of such severity that he is 15 not only unable to do his previous work but cannot, considering his age, 16 education, and work experience, engage in any other kind of substantial gainful 17 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 18 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003) (citation and quotation marks 19 omitted). 20 B. 21 The ALJ found Fergins has the medically determinable impairments of Disability The ALJ s Findings 22 multiple gunshot wounds with associated pain and range of motion limitation; 23 numbness in toes and feet; mono-neuropathies; and peripheral neuropathy. AR 24 11. Fergins has the RFC to perform sedentary work in that: 25 26 27 28 he can exert up to 10 pounds of force occasionally and/or exert a negligible amount of force frequently to move objects, including the human body. [He] can stand and walk up to 2 hours and sit up to 6 hours in an 8-hour workday with normal breaks, provided that standing and walking or sitting does not exceed 30 minutes at a time. After 30 minutes, [he] can alternate between standing and sitting for up to 5 minutes in order to stretch or rest prior 3 1 2 3 4 5 6 7 8 9 to returning to the prior position. He can perform work that does not require climbing ladders, ropes or scaffolds, and no more than occasional climbing of ramps or stairs (not to exceed 3 steps), balancing[,] stooping, kneeling, crouching or crawling. [He] can perform work that does not require walking on uneven ground and allows for use of a hand-held assistive device at all times for ambulation. [He] is able to lift, reach, push and pull occasionally overhead and frequently in all other planes with his right and/or left upper extremity. He can frequently handle, finger and feel objects with his right and/or left upper extremity/hand. [He] can perform work that does not require any more than occasional operation of foot controls with his right and/or left lower extremity. He can perform work that does not require concentrated exposure to extreme cold or extreme vibration, and does not require any exposure to hazardous machinery, unprotected heights, or other high risk, hazardous or unsafe conditions. 10 AR 11-12. Fergins cannot perform any past relevant work. AR 15. However, based on 11 the VE's testimony, the ALJ found there were a significant number of jobs in the 12 national economy that he could perform such as touch-up screener, call out 13 operator and order clerk. AR 16. 14 C. 15 Fergins contends the ALJ improperly considered the opinions of his 16 treating physicians at Hubert H. Humphrey Comprehensive Health Center 17 ( HHHCHC ) and Martin Luther King/Drew Medical Center ( MLK ), and the 18 examining physician, Dr. Bleeker. Fergins argues the ALJ therefore erred in his 19 RFC assessment. 20 Treating Physicians and Examining Physician Fergins points out that he was diagnosed with post traumatic arthritis and 21 degenerative joint disease of the left knee at HHHCHC, and an MLK treating 22 physician prescribed a walker for him. AR 507, 513, 550-51. On January 5, 23 2009, the treating physician noted Fergins had an antalgic gait using a single 24 point cane and prescribed a full weight bearing walker. AR 550-51. 25 On February 2, 2010, at the request of the ALJ, Dr. Bleecker performed an 26 orthopedic examination of Fergins and reviewed his medical records. AR 578-89. 27 Dr. Bleecker diagnosed Fergins with degenerative disk disease, degenerative 28 arthritis of the cervical spine with instability at C5-6 and left C5-6 radiculopathy, 4 1 degenerative arthritis in both knees, painful metal fixation in the left knee, 2 degenerative disk disease with interbody herniated disk L2 and slightly 3 hyperactive reflexes, no clonus. AR 582. Dr. Bleecker opined that Fergins 4 required the use of a thoracolumbar rigid brace along with a walker or wheelchair; 5 could sit six hours in an eight-hour workday; stand and walk two hours in an 6 eight-hour workday; sit, stand and walk 30 minutes at one time without 7 interruption; lift up to 10 pounds occasionally and frequently; could reach 8 overhead occasionally and in all other planes frequently; handle, finger, feel and 9 push and pull continuously; and could never climb stairs, ramps, ladders or 10 11 scaffolds, balance, stoop, kneel, crouch and crawl. AR 582, 584-89. An opinion of a treating physician is given more weight than the opinion of 12 non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To 13 reject an uncontradicted opinion of a treating physician, an ALJ must state clear 14 and convincing reasons that are supported by substantial evidence. Bayliss v. 15 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When a treating physician s 16 opinion is contradicted by another doctor, as here, the ALJ may not reject this 17 opinion without providing specific and legitimate reasons supported by substantial 18 evidence in the record. This can be done by setting out a detailed and thorough 19 summary of the facts and conflicting clinical evidence, stating his interpretation 20 thereof, and making findings. Orn, 495 F.3d at 632 (citations and quotation 21 marks omitted). When there is conflicting medical evidence, the Secretary must 22 determine credibility and resolve the conflict. Thomas v. Barnhart, 278 F.3d 947, 23 956-57 (9th Cir. 2002) (citation and quotation marks omitted). 24 An examining physician's opinion constitutes substantial evidence when it 25 is based on independent clinical findings. Orn, 495 F.3d at 631. When an 26 examining physician's opinion is contradicted, it may be rejected for specific and 27 legitimate reasons that are supported by substantial evidence in the record. 28 Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 5 1 2 (citation omitted). The ALJ gave Dr. Bleecker s opinion great weight because he recently 3 examined Fergins and adequately considered Fergins subjective complaints and 4 obesity. Dr. Bleeker s opinion was consistent with the record as a whole. AR 14. 5 However, the ALJ s RFC assessment is inconsistent with the opinions of 6 Dr. Bleeker and the treating physician that Fergins requires use of a walker. In 7 addition, the ALJ rejected Dr. Bleeker s opinion that Fergins should never climb 8 stairs and ramps, balance, stoop, kneel, crouch and crawl. 9 The ALJ mistakenly described Dr. Bleeker s opinion as stating that Fergins 10 required a cane to walk. AR 14. Dr. Bleeker opined that Fergins required a 11 walker or wheelchair. AR 582, 585. His opinion is consistent with the treating 12 physician s prescription for a walker in January 2009. AR 550-51. The medical 13 expert disagreed and opined that a single point cane would be sufficient when 14 ambulating. AR 38-39, 47. 15 The opinion of a nonexamining physician cannot by itself constitute 16 substantial evidence that justifies the rejection of the opinion of either an 17 examining physician or a treating physician. Ryan v. Comm'r, Soc. Sec. Admin., 18 528 F.3d 1194, 1202 (9th Cir. 2008) (citation omitted; emphasis in original). A 19 non-examining physician's opinion may serve as substantial evidence when it is 20 supported by other evidence in the record and is consistent with it, which is not 21 the case here. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). The ALJ 22 noted that Fergins and his friend stated that Fergins used a cane. AR 12-13. 23 However, the friend s report is dated April 11, 2007. AR 13, 254, 256. Although 24 Fergins Disability Report is undated, it indicates his next appointment at MLK is 25 on April 20, 2007. AR 12, 258, 261. At the November 14, 2008 hearing, Fergins 26 testified he used a cane. AR 78; see also AR 375. The treating physician 27 prescribed a walker on January 5, 2009. AR 550-51. At the subsequent January 28 4, 2010 hearing, Fergins testified his condition had gotten worse since the 6 1 November 2008 hearing. He can walk a little bit, but then my legs will give out 2 on me. AR 64. Dr. Bleeker s orthopedic examination occurred on February 2, 3 2010. AR 578. Accordingly, the medical expert s testimony about the cane is not 4 consistent with any evidence in the record as of January 5, 2009. 5 The ALJ rejected Dr. Bleeker s opinion that Fergins could never climb 6 stairs and ramps, balance, stoop, kneel, crouch and crawl. The ALJ instead 7 adopted the medical expert s opinion that Fergins could occasionally climb stairs 8 (three steps at a time) and ramps, and could occasionally balance, kneel, crouch 9 or stoop. AR 12, 33, 39-40. The ALJ did not articulate any reason supported by 10 substantial evidence in the record for rejecting Dr. Bleeker s opinion. The ALJ 11 noted generally that the medical expert s area of specialty was orthopedic surgery 12 and he had reviewed the medical records. AR 14. However, Dr. Bleeker was 13 also board certified in orthopedic surgery and reviewed the medical records.1 AR 14 578, 581-82. Although the medical expert heard Fergins testimony at the June 15 22, 2010 hearing, none of the testimony related to this issue. 16 Fergins argues that the ALJ s RFC assessment that he can frequently 17 handle, finger and feel objects with his left hand is inconsistent with Dr. Bleeker s 18 opinion that Fergins could not grip with his left hand. However, Dr. Bleecker 19 opined that Fergins could continuously handle, finger, feel, push and pull with 20 both hands. AR 586. The ALJ s determination is not inconsistent with Dr. 21 Bleecker s findings.2 22 23 24 25 26 27 28 1 The ALJ apparently selected the exhibits to be sent to Dr. Bleeker for review. AR 67. 2 Fergins also argues the ALJ improperly rejected Dr. Bleecker s opinion that Fergins was left-hand dominant. AR 581. The ALJ stated that Dr. Moore, another examining physician, reported that Fergins was right-handed. AR 14. The ALJ s determination is supported by substantial evidence. Fergins argues that the ALJ should have recontacted Dr. Moore. An ALJ s duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). The ALJ made no finding that 7 1 The ALJ s rejection of Dr. Bleeker s opinion that Fergins requires a walker 2 and cannot climb stairs and ramps, balance, stoop, kneel, crouch and crawl, is 3 not supported by substantial evidence in the record. On remand, those 4 limitations must be credited beginning January 5, 2009. 5 D. 6 The ALJ may rely on testimony a vocational expert gives in response to a Hypothetical to the VE 7 hypothetical that contains all of the limitations that the ALJ found credible and 8 supported by substantial evidence in the record. Bayliss, 427 F.3d at 1217 18. 9 10 On remand, the ALJ s hypotheticals must contain the limitations set forth above as of January 5, 2009. 11 E. 12 Fergins contends the ALJ improperly considered whether his combination 13 14 Medical Equivalency to Listed Impairment 1.02A and 1.03 of impairments met or equaled Listing 1.02(a) and Listing 1.03. The claimant bears the burden of demonstrating that his impairments are 15 equivalent to one of the listed impairments that are so severe as to preclude 16 substantial gainful activity. Bowen v. Yuckert, 482 U.S. 137, 141, 146 n.5, 107 S. 17 Ct. 2287 (1987). If the impairment meets or equals one of the listed impairments, 18 the claimant is conclusively presumed to be disabled. If the impairment is not one 19 that is conclusively presumed to be disabling, the evaluation proceeds to the 20 fourth step. Id. at 141; see also Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 21 1999); 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 22 The listings define impairments that would prevent an adult, regardless of 23 his age, education, or work experience, from performing any gainful activity, not 24 just substantial gainful activity. Sullivan v. Zebley, 493 U.S. 521, 532 (1990) 25 (quoting 20 C.F.R. § 416.925(a), emphasis in original). For a claimant to show 26 27 28 the record is ambiguous or inadequate. It is the ALJ s province to resolve conflicts in the medical evidence. In any event, according to the VE s testimony, the left-hand limitation would only remove the touch-up screener job. AR 50. Therefore, this issue is not material to the outcome. 8 1 that his impairment matches a listing, it must meet all of the specified medical 2 criteria. An impairment that manifests only some of those criteria, no matter how 3 severely, does not qualify. Id. at 530 (emphasis in original). To equal a listed 4 impairment, a claimant must establish symptoms, signs and laboratory findings 5 at least equal in severity and duration to the characteristics of a relevant listed 6 impairment, or, if a claimant's impairment is not listed, then to the listed 7 impairment most like the claimant's impairment. Tackett, 180 F.3d at 1099 8 (quoting 20 C .F.R. § 404.1526, emphases in original). Medical equivalence 9 must be based on medical findings. A generalized assertion of functional 10 problems is not enough to establish disability at step three. Id. at 1100 (quoting 11 20 C.F.R. § 404.1526). 12 Listing 1.02(a) reads: Major dysfunction of a joint(s) (due to any cause): 13 Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony 14 or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of 15 limitation of motion or other abnormal motion of the affected joint(s), and findings 16 on appropriate medically acceptable imaging of joint space narrowing, bony 17 destruction, or ankylosis of the affected joint(s). With: A. Involvement of one 18 major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in 19 inability to ambulate effectively, as defined in 1.00B2b. 20 C.F.R., Part 404, 20 Subpart P, Appendix 1. 21 An inability to ambulate effectively is defined as an extreme limitation of 22 the ability to walk; i.e., an impairment(s) that interferes very seriously with the 23 individual's ability to independently initiate, sustain, or complete activities. 24 Ineffective ambulation is defined generally as having insufficient lower extremity 25 functioning (see 1.00J) to permit independent ambulation without the use of a 26 hand-held assistive device(s) that limits the functioning of both upper extremities. 27 Id. § 1.00B.2.b(1). An example includes the inability to walk without the use of a 28 walker, two crutches or two canes, the inability to walk a block at a reasonable 9 1 pace on rough or uneven surfaces, the inability to use standard public 2 transportation, the inability to carry out routine ambulatory activities, such as 3 shopping and banking, and the inability to climb a few steps at a reasonable pace 4 with the use of a single hand rail. The ability to walk independently about one's 5 home without the use of assistive devices does not, in and of itself, constitute 6 effective ambulation. Id. § 1.00B.2.b(2). 7 Listing 1.3 provides: Reconstructive surgery or surgical arthrodesis3 of a 8 major weight-bearing joint, with inability to ambulate effectively, as defined in § 9 1.00B.2.b(1)-(2) (see definition above), and return to effective ambulation did not 10 occur, or is not expected to occur, within 12 months of onset. 20 C.F.R., Part 11 404, Subpart P, Appendix 1. 12 The ALJ found that Fergins does not have an impairment or combination 13 of impairments that meets or medically equals one of the listed impairments . . . 14 including but not limited to the Section 1.00 musculoskeletal impairments (such 15 as Section 1.02A regarding [m]ajor dysfunction of a joint (due to any cause) and 16 Section 11.14 regarding peripheral neuropathies. AR 11. 17 Because this matter is being remanded, the Commissioner is free to 18 consider whether Fergins meets or equals the listings identified by him in this 19 action. 20 IV. 21 ORDER 22 IT IS HEREBY ORDERED that the decision of the Commissioner is 23 reversed and remanded for further proceedings for the period beginning January 24 5, 2009, consistent with this opinion. 25 26 27 28 3 Arthrodesis is a surgical procedure also known as joint fusion, which removes the damaged portion of the joint and is followed by implantation of screws, wires or plates to hold the bones together until they heal, letting the bones grow together or fuse. Reid v. Astrue, 2009 WL 368656, at *10 n.31 (S.D. Fla. Jan.8, 2009) (citations omitted). 10 1 2 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 3 4 5 DATED: December 20, 2012 ALICIA G. ROSENBERG United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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