Monica Jean Moore v. Michael J Astrue, No. 2:2012cv07031 - Document 20 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MONICA JEAN MOORE, Plaintiff, 12 13 14 15 16 vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 12-07031 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff Monica Jean Moore received a diagnosis of bipolar disorder. The 18 Administrative Law Judge found that she was not disabled, however, rejecting the opinion 19 of Plaintiff s treating physician, Dr. Israel. Dr. Israel stated in a July 2010 assessment that 20 Plaintiff did not have the ability to maintain a sustained level of concentration, sustain 21 repetitive tasks for an extended period, or adapt to new or stressful situations. He also 22 opined that Plaintiff lacked the ability to interact appropriately with others, and that she 23 could not work a 40-hour week without decompensating. [AR 416] The Administrative 24 Law Judge did not agree. He relied instead on the opinion of a non-examining medical 25 consultant, Dr. Kania and, although the Administrative Law Judge referenced only an 26 April 1, 2010 assessment by Dr. Israel, he probably in fact referred to the July assessment 27 as well, because they were together in the record [AR 416-419] and Dr. Kania testified 28 about them together when he appeared telephonically at the hearing. [AR 31-32] The 1 Administrative Law Judge stated that Dr. Kania testified that the rest of the records do not 2 support Dr. Israel s assessment, and that Dr. Kania s testimony is reasonable and 3 consistent with the medical evidence. Therefore , he is given great weight because he is 4 found to be highly credible. [AR 17] 5 The approach of the Administrative Law Judge was erroneous. In Orn v. 6 Astrue, 495 F.3d 625 (9th Cir. 2007), the Court of Appeals described the interaction 7 between an opinion from a consultant and an opinion from a treating physician: 8 9 When an examining physician relies on the same clinical 10 findings as a treating physician, but differs only in his or her 11 own conclusions, the conclusions of the examining physician are 12 not substantial evidence. 13 14 495 F.3d at 632. The Court went on to contrast that situation with the situation where the 15 examining physician made his own independent findings, in which case the findings can 16 stand as substantial evidence. The Court then explained that [i]ndependent clinical 17 findings can be either (1) diagnoses that differ from those offered by another physician and 18 that are supported by substantial evidence . . . or (2) findings based on objective medical 19 tests that the treating physician has not herself considered . . . . Id. (citations omitted). 20 Consistent with Orn, the Court of Appeals in Lester v. Chater, 81 F.3d 821, 21 831 (9th Cir. 1996), ruled that the opinion of a non-examining physician cannot by itself 22 constitute substantial evidence that justifies the rejection of either an examining physician 23 or a treating physician. Cases which do rely on the opinion of a non-examining consultant 24 nevertheless also say that there must be other evidence in the record with which the 25 advisor s opinion is consistent. See, e.g., Morgan v. Commissioner of Social Security 26 Administration, 169 F.3d 595, 600 (9th Cir. 1999). Here the medical advisor relied on no 27 independent findings, but simply disagreed with the conclusions of the treating physician 28 based on the records. -2- 1 In this Court, the Commissioner defends the decision in two ways. One, 2 relying on Turner v. Commissioner, 613 F.2d 1217, 1223 (9th Cir. 2010), the 3 Commissioner argues that it is proper to rely on a medical expert s view that the record did 4 not support the treating physician s opinion. In Turner, however, the Administrative Law 5 Judge did not reject the treating physician s opinion. 613 F.3d at 1223. After so ruling, 6 and continuing on an even if and therefore clearly dicta basis, the Court then sided 7 with the medical expert, but on the basis of a variety of evidence other than the expert s 8 opinion about the records. Id. This approach was entirely consistent with Orn, Lester and 9 Morgan, cited above, all requiring independent matters beyond the opinion of the medical 10 advisor that the treating doctor s records do not support his conclusions. 11 Two, the Commissioner argues that there was substantial evidence to support 12 the medical expert s conclusion that the assessment of Plaintiff s capabilities was not made 13 by a medical professional. (Defendant s Memorandum in Support of Defendant s Answer 14 at 3). This was not the finding of the Administrative Law Judge, however, who noted that 15 the assessment was made by a psychiatrist. [AR 16] The Administrative Law Judge did 16 give less weight to non-medical personnel who made other assessments in the record [AR 17 16], but did clearly address the assessment that was made by the treating physician. 18 The Administrative Law Judge having erred in his rejection of the treating 19 physician s opinion, the decision of the Commissioner cannot stand. The decision is 20 reversed, and the matter is remanded to the Commissioner for further proceedings 21 consistent with this memorandum opinion. 22 IT IS SO ORDERED. 23 DATED: July 31, 2013 24 25 26 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 27 28 -3-
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