Jorge Senda Aguilera v. Carolyn W. Colvin, No. 2:2012cv09644 - Document 17 (C.D. Cal. 2013)

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)

Download PDF

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 JORGE SENDA AGUILERA, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) ) Defendant. ) ) ___________________________________) NO. CV 12-9644-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 November 14, 2012, seeking review 27 of the Commissioner s denial of social security benefits. The parties 28 filed a consent to proceed before a United States Magistrate Judge on 1 December 18, 2012. Plaintiff filed a motion for summary judgment on 2 June 3, 2013. Defendant filed a motion for summary judgment on 3 June 6, 2013. The Court has taken both motions under submission 4 without oral argument. 5 2012. See L.R. 7-15; Order, filed November 14, 6 7 BACKGROUND 8 9 Plaintiff filed an application for benefits on November 13, 2009, 10 asserting disability since April 30, 2008 (Administrative Record 11 ( A.R. ) 140-41). 12 waist, shoulder [and] left hand limited his ability to work (A.R. 13 160). Plaintiff alleged that injuries to his lower 14 15 An Administrative Law Judge ( ALJ ) found that, although 16 Plaintiff suffered from severe degenerative disc disease of the lumbar 17 spine and status left rotator cuff repair, Plaintiff retained the 18 residual functional capacity to perform a limited range of light work 19 (A.R. 31, 34 (citing 20 C.F.R. 404.1567(b)).1 20 Plaintiff s limitations precluded the performance of Plaintiff s past The ALJ found that 21 1 22 Specifically, the ALJ found that Plaintiff could: 23 . . . stand, walk, or sit for 6 hours in an 8 hour workday; can occasionally climb ramps and stairs, balance, stoop, kneel, or crouch; can never climb ladders, ropes or scaffolds or crawl; can occasionally reach overhead with the left upper extremity; and must avoid concentrated exposure to vibrations and cold temperatures. 24 25 26 27 28 (A.R. 34 (adopting non-examining medical expert s testimony at A.R. 78 and adding limitations for vibrations and cold temperatures)). 2 1 relevant work, but not the performance of certain other jobs (A.R. 37 2 (adopting vocational expert testimony at A.R. 86-87)). 3 4 Plaintiff sought review from the Appeals Council, submitting 5 letters from Plaintiff s representative and some additional medical 6 records (A.R. 199-200, 203 05 (letters); A.R. 357-66 (additional 7 medical records)). 8 materials, but denied review (A.R. 1-6). The Appeals Council considered these additional 9 10 STANDARD OF REVIEW 11 12 Under 42 U.S.C. section 405(g), this Court reviews the 13 Administration s decision to determine if: (1) the Administration s 14 findings are supported by substantial evidence; and (2) the 15 Administration used correct legal standards. 16 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 17 499 F.3d 1071, 1074 (9th Cir. 2007). 18 relevant evidence as a reasonable mind might accept as adequate to 19 support a conclusion. 20 (1971) (citation and quotations omitted); see also Widmark v. 21 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 22 23 Where, as here, the Appeals Council considered additional 24 material but denied review, the additional material becomes part of 25 the Administrative Record for purposes of the Court's analysis. 26 Brewes v. Commissioner, 682 F.3d 1157, 1163 (9th Cir. 2012) ( [W]hen 27 the Appeals Council considers new evidence in deciding whether to 28 review a decision of the ALJ, that evidence becomes part of the 3 See 1 administrative record, which the district court must consider when 2 reviewing the Commissioner's final decision for substantial 3 evidence. ; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 4 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1232 (2011) 5 (courts may consider evidence presented for the first time to the 6 Appeals Council to determine whether, in light of the record as a 7 whole, the ALJ's decision was supported by substantial evidence and 8 was free of legal error ); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th 9 Cir. 1993) ( the Appeals Council considered this information and it 10 became part of the record we are required to review as a whole ); see 11 generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 12 13 DISCUSSION 14 15 I. 16 The ALJ Erred in the Evaluation of Evidence from Plaintiff s Examining Physicians. 17 18 19 As discussed below, the ALJ failed properly to evaluate the examining physicians opinions regarding Plaintiff s limitations. 20 21 A. Summary of the Available Medical Evidence 22 Following Plaintiff s work-related injury,2 Plaintiff received 23 24 chiropractic treatment from Arbi Mirzaians DC (A.R. 162; see also A.R. 25 222. Mirzaians reportedly referred Plaintiff for MRI and CT scans of 26 27 28 2 A 60-pound hanging flowerpot reportedly fell from a height of 10 feet, striking Plaintiff on the right side of his back and ribs as Plaintiff was bent over. See A.R. 248. 4 1 his lower back (A.R. 163). The record before the ALJ contained no 2 regular treatment notes or reports from Mirzaians.3 3 4 As part of Plaintiff s workers compensation claim, Plaintiff was 5 evaluated by two orthopedic surgeons. Dr. Stepan Kasimian evaluated 6 Plaintiff on three occasions and prepared reports. 7 242-44, 247-54 ( Spinal Consultation Re-Evaluation Report and 8 Supplementary Report dated October 13, 2009, Spinal Consultation 9 Re-Evaluation Report dated September 1, 2009, and Orthopedic See A.R. 233-37, 10 Surgical Consultation Report dated June 9, 2009). Plaintiff 11 initially complained of left shoulder and low back pain, but later 12 complained of leg pain as well (A.R. 234, 243, 249). 13 Dr. Kasimian found pain aggravated by flexion and extension of 14 Plaintiff s lumbar spine (A.R. 252). 15 motor power strength in his left lower extremities (A.R. 252). 16 Available x-rays and MRI studies showed spondylosis at L5-S1, a 7mm 17 disc herniation (paracentral and left) at L5-S1, and a 3mm disc 18 herniation at L4-5 with mild stenosis (A.R. 253).4 19 diagnosed Plaintiff with L5-S1 herniated nucleus pulposus and left L5 20 radiculopathy, indicated that Plaintiff was a surgical candidate, and 21 requested that Plaintiff return in six weeks for re-evaluation On examination, Plaintiff also had decreased Dr. Kasimian 22 23 24 3 As discussed below, Plaintiff did submit to the Appeals Council a Primary Treating Physician s Re-Evaluation Narrative Report and Request for Authorization by Mirzaians dated December 8, 2011 (A.R. 363-66). 25 4 26 27 28 It appears that the imaging studies included in the record are incomplete. Dr. Kasimian referenced x-rays taken the day after Plaintiff s injury (i.e., on May 1, 2008), and a June 9, 2009 x-ray that are not in the record. Compare A.R. 249 and 253 (Dr. Kasimian s notes) with A.R. 255-57 (the only imaging reports included in the record). 5 1 (A.R. 253). 2 3 On Plaintiff s second visit, Dr. Kasimian stated that Plaintiff 4 had failed conservative treatment and was a candidate for L4-5 and L5- 5 S1 decompression and fusion (A.R. 243-44). 6 difficulty walking for prolonged periods of time (A.R. 243). 7 Available radiographs and MRIs assertedly showed Grade 1 8 spondylolisthesis with 4-mm of motion on flexion-extension films, and 9 foraminal stenosis at L5 with lateral recess stenosis at L4-5 (A.R. 10 243). Plaintiff reported Dr. Kasimian requested authorization for surgery (A.R. 244). 11 12 On Plaintiff s third visit, Dr. Kasimian stated that Plaintiff 13 wanted to move forward with surgery (A.R. 234). On examination, 14 Plaintiff had reduced motor power strength in both his left and right 15 lower extremities (A.R. 234). 16 herniated nucleus pulposus at L4-5 and L5-S1, degenerative disc 17 disease at L4-5 and L5-S1, chronic low back pain, and chronic 18 radiculopathy (A.R. 234-35). 19 authorization for surgery (A.R. 235). Dr. Kasimian diagnosed Plaintiff with Dr. Kasimian again requested 20 21 Authorization for the surgery did not follow. Plaintiff 22 reportedly did not meet the guidelines for surgery because there 23 supposedly was no documentation of at least one imaging report finding 24 nerve root compression, lateral disc rupture, or lateral recess 25 stenosis, with a diagnosis for which fusion is indicated at the 26 corresponding levels (A.R. 213-16). 27 /// 28 /// 6 1 Meanwhile, orthopedic surgeon Dr. Arthur Garfinkel examined 2 Plaintiff and prepared an Orthopaedic Qualified Medical Evaluation 3 dated September 21, 2009 (A.R. 221-32). 4 alia, Plaintiff s relevant medical records from Mirzaians and Dr. 5 Kasimian s initial report (A.R. 221, 227-28). 6 had undergone physical therapy and epidural steroid injections (A.R. 7 228). Dr. Garfinkel reviewed, inter At the time, Plaintiff 8 9 To Dr. Garfinkel, Plaintiff reported left shoulder and low back 10 pain, radiating down both legs, with more pain on the left side (A.R. 11 223). 12 revealed: 13 cervical and thoracic spine without tenderness; (3) full range of 14 motion in the lumbosacral spine with pain at the end range of motion, 15 and muscle tenderness to palpation; (4) positive straight leg raising 16 in both seated and supine position; (5) full range of motion for the 17 left shoulder with pain at the end range of motion in all planes and 18 positive impingement sign; and (6) no evidence of atrophy in the upper 19 or lower extremities (A.R. 224-26). Plaintiff was taking naproxen for pain (A.R. 224). Examination (1) a somewhat stiff gait; (2) full range of motion for the 20 21 Dr. Garfinkel opined that Plaintiff had a strain of the 22 lumbosacral spine, lumbar radiculopathy, herniated nucleus pulposus of 23 the lumbosacral spine, sprain and strain of the left shoulder, a torn 24 left rotator cuff, and impingement syndrome of the left shoulder (A.R. 25 229). 26 shoulder surgery (A.R. 229). 27 could work with the following restrictions: 28 15 pounds on a frequent and occasional basis; (2) standing or walking Plaintiff then was a candidate for lumbosacral and left Dr. Garfinkel opined that Plaintiff 7 (1) lifting no more than 1 no more than four hours in an eight hour period, and standing no more 2 than 30 minutes at one time; (3) no overhead reaching with his left 3 upper extremity; and (4) no climbing, crawling, kneeling, squatting, 4 bending, stooping, or balancing (A.R. 229-31). 5 6 On December 11, 2009, Dr. Daniel Silver performed surgery on 7 Plaintiff s left shoulder to repair the rotator cuff. Dr. Silver saw 8 Plaintiff for follow-up visits through at least January 25, 2010 (A.R. 9 307-56). Six weeks after the surgery, Plaintiff s wounds were healed 10 and he was able to move his shoulder, although with limited range of 11 motion (A.R. 308). 12 pain that radiated to his right leg (A.R. 308). 13 Plaintiff with left shoulder rotator cuff tear, acromioclavicular 14 joint severe arthrosis, lumbar sprain/strain (rule out herniated 15 nucleus pulposus), insomnia, depression, postoperative bladder 16 dysfunction, and status post arthroscopic subacromial decompression, 17 partial claviculectomy and left shoulder rotator cuff repair (A.R. 18 308). Plaintiff reportedly still had shoulder and back Dr. Silver diagnosed Plaintiff was referred for physical therapy (A.R. 308). 19 20 Plaintiff underwent an orthopedic examination by Dr. Payam 21 Moazzaz on April 6, 2010 (A.R. 274-79). Dr. Moazzaz reviewed no 22 medical records (A.R. 274). 23 low back pain (A.R. 274). 24 squatting, tenderness to palpation in the paraspinal musculature and 25 diminished range of motion, but negative straight leg raising (A.R. 26 276). 27 shoulder (A.R. 276). 28 degenerative disc disease of the lumbar spine and was status post left Plaintiff complained of left shoulder and Plaintiff was observed to have difficulty Plaintiff also had decreased range of motion in his left Dr. Moazzaz opined that Plaintiff had 8 1 shoulder rotator cuff repair based on the incision to Plaintiff s 2 shoulder (A.R. 278). 3 performing medium work (lifting and carrying 50 pounds occasionally 4 and 25 pounds frequently), standing and walking six hours and sitting 5 six hours out of an eight hour day, with frequent climbing, stooping, 6 kneeling and crouching, and frequent overhead activities on the left 7 side (A.R. 278). Dr. Moazzaz opined that Plaintiff was capable of 8 9 Non-examining state agency review physician K. Mauro completed a 10 Physical Residual Functional Capacity Assessment for Plaintiff dated 11 April 21, 2010 (A.R. 280-84). 12 capable of performing light work, with preclusion from climbing 13 ladders, ropes, or scaffolds, with only occasional kneeling and 14 crawling, with limited left upper extremity reaching, and with 15 avoidance of extreme cold and vibration. 16 light residual functional capacity, rather than a medium capacity, 17 better accommodated Plaintiff s combination of impairments in view of 18 the lumbar spine imaging (which Dr. Moazzaz did not review) (A.R. 19 298). 20 agreed with Dr. Mauro s assessment. Dr. Mauro opined that Plaintiff was Id. Dr. Mauro stated that a A later non-examining reviewing physician, Dr. Vaghaiwalla, See A.R. 300-02. 21 22 Dr. Arthur Brovender, the non-examining medical expert, reviewed 23 the available medical records and testified from Dr. Moazzaz s report 24 that Plaintiff had decreased range of motion in his lumbosacral spine 25 and left shoulder, and negative straight leg raising, with normal 26 motor, neurological and sensory examinations (A.R. 72, 76-77). 27 Brovender did not summarize or discuss any of the other physicians 28 opinions or findings. Dr. Dr. Brovender opined that Plaintiff would be 9 1 able to perform a limited range of light work, with all of the 2 limitations the ALJ found to exist except the environmental 3 limitations. 4 capacity assessment). Compare A.R. 78 with 34 (ALJ s residual functional 5 6 B. Evidence Reviewed by the Appeals Council 7 8 After the ALJ s adverse decision, Plaintiff submitted a Physical 9 Capacities Evaluation form from Dr. Thomas Grogan dated September 28, 10 2011 (A.R. 357; see also A.R. 4 (Appeals Council s exhibit list)). 11 Dr. Grogan opined that Plaintiff was capable of sitting four hours, 12 standing three hours, and walking two hours in an eight hour day, and 13 lifting and carrying up to five pounds occasionally (A.R. 357). 14 Plaintiff also submitted a report from Mirzaians dated December 8, 15 2011, wherein Mirzaians stated that Plaintiff had undergone low back 16 surgery (A.R. 363). 17 surgery, but did indicate in a letter to the Appeals Council that the 18 surgery occurred on November 8, 2011 (A.R. 203-05). Plaintiff did not submit any records from that 19 20 C. Analysis 21 22 As summarized above, the ALJ found Plaintiff capable of 23 performing a limited range of light work. In reaching this 24 conclusion, the ALJ purportedly gave moderate weight to the opinions 25 of consultative examiner Dr. Moazzaz, state agency review physician 26 Dr. Mauro, and non-examining medical expert Dr. Brovender (A.R. 34- 27 36). 28 consultative examiner Dr. Garfinkel because Dr. Garfinkel s opinions The ALJ reportedly gave little weight to the opinions of 10 1 [were] developed as part of [Plaintiff s] worker s compensation case 2 and [were] based a single examination (A.R. 36).5 3 4 The Administration must consider and evaluate every medical 5 opinion of record. 20 C.F.R. § 404.1527(b) and (c); see SSR 96-8p. 6 In this consideration and evaluation, an ALJ cannot reject [medical] 7 evidence for no reason or the wrong reason. 8 F.2d 700, 706-07 (3d Cir. 1981); see Day v. Weinberger, 522 F.2d 1154, 9 1156 (9th Cir. 1975) (ALJ may not make his or her own lay medical 10 assessment); see also Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 11 1887) ( ALJ cannot arbitrarily substitute his [or her] own judgment 12 for competent medical opinion ). Cotter v. Harris, 642 13 14 In the present case, the ALJ erred in the evaluation of Dr. 15 Garfinkel s opinions. The only two stated reasons for discounting Dr. 16 Garfinkel s opinions (the worker s compensation rationale and the 17 single examination rationale) are demonstrably arbitrary and/or 18 legally infirm. 19 20 With regard to the worker s compensation rationale, the Ninth 21 Circuit has made clear that in the absence of other evidence to 22 undermine the credibility of a medical report, the purpose for which 23 [a medical] report was obtained does not provide a legitimate basis 24 for rejecting it. Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 25 26 27 28 5 From the residual functional capacity assessment the ALJ adopted, it appears that the ALJ gave the greatest weight to the non-examining physician opinions of Drs. Mauro and Brovender. Compare A.R. 34 (ALJ s assessment) with A.R. 78 and 280-84 (opinions). 11 1 1988) (mere fact that opinions were provided for disability carrier at 2 the request of counsel is not a legitimate basis for evaluating the 3 reliability of the report); see Booth v. Barnhart, 181 F. Supp. 2d 4 1099, 1105 (C.D. Cal. 2002) ( the ALJ may not disregard a physician s 5 medical opinion simply because it was initially elicited in a state 6 worker s compensation proceeding . . . ). 7 other evidence to undermine the credibility of Dr. Garfinkel s report, 8 and no such evidence is apparent in the available record. Here, the ALJ identified no 9 10 The sole examination rationale is equally unsustainable. 11 fact that Dr. Garfinkel examined Plaintiff only once plainly does not 12 provide a non-arbitrary basis for discounting Dr. Garfinkel s opinion 13 in favor of the opinions of Dr. Moazzaz (who also examined Plaintiff 14 only once and who did not review any medical records),6 or the 15 opinions of Drs. Mauro and Brovender (who did not examine Plaintiff at 16 all). 17 evidence does not support the ALJ s rejection of Dr. Garfinkel s 18 opinion in favor of the opinions of Drs. Moazzaz, Mauro, and 19 /// 20 /// 21 /// 22 /// Without further consideration and explanation, substantial 23 24 6 25 26 27 28 The only reason the ALJ stated for purporting to accord moderate weight to Dr. Moazzaz s opinions is equally arbitrary and similarly fails to distinguish Dr. Moazzaz s opinions from those of Dr. Garfinkel. The ALJ assigned moderate weight to Dr. Moazzaz s opinion, as it is based on professional observation and testing (A.R. 35). Of course, Dr. Garfinkel s opinions also were based on, inter alia, professional observation and testing (A.R. 221-32). 12 The 1 Brovender.7 2 3 II. Remand is Appropriate. 4 5 Remand is appropriate because the circumstances of this case 6 suggest that further administrative review could remedy the ALJ s 7 errors.8 8 generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 9 administrative determination, the proper course is remand for 10 additional agency investigation or explanation, except in rare 11 circumstances). McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 12 7 13 14 15 16 The Court observes that, despite the ALJ purportedly having given moderate weight to Dr. Moazzaz s opinions, the ALJ adopted a residual functional capacity more akin to the capacity assessed by the non-examining medical sources. In the absence of record evidence to support the non-examining opinions, however, such assessments could not by themselves constitute substantial evidence to support the ALJ s decision. See Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995). 17 8 18 19 20 21 22 23 24 25 26 27 28 There are outstanding issues that must be resolved before a proper disability determination can be made in the present case. For this reason, the Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ( Harman ) also does not compel a reversal for the immediate payment of benefits. In Harman, the Ninth Circuit stated that improperly rejected medical opinion evidence should be credited and an immediate award of benefits directed where (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Harman at 1178 (citations and quotations omitted). Assuming, arguendo, the Harman holding survives the Supreme Court s decision in INS v. Ventura, 537 U.S. 12 (2002), the Harman holding does not direct reversal of the present case. In addition to the outstanding issues that must be resolved, it is not clear that the ALJ would be required to find Plaintiff disabled for the entire period of claimed disability even if Dr. Garfinkel s opinions were fully credited. 13 1 CONCLUSION 2 3 For all of the foregoing reasons, Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion.9 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: July 24, 2013. 10 11 ______________/S/__________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 9 28 The Court has not reached any of the other issues raised by Plaintiff. 14

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.