Enis Z Yeneriz v. Carolyn W Colvin, No. 2:2012cv09759 - Document 21 (C.D. Cal. 2013)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton. This Memorandum Opinion will constitute the Courts findings offact and conclusions of law. After reviewing the matter, the Courtconcludes that for the reasons set forth in this Memorandum and Opinion, the decision of theCommissioner must be reversed and the matter remanded. The Court finds that the ALJs credibility assessment is not based on allowable factors, and on remand, Plaintiffs credibility will be determined de novo. (rh)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 ENIS Z. YENERIZ, 12 Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-09759-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. The parties have filed the 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) gave proper 1 2 consideration to the opinions of the treating physician; and 2. 3 4 Whether the ALJ gave proper consideration to Plaintiff s testimony. (JS at 4-5.) 5 6 This Memorandum Opinion will constitute the Court s findings of 7 fact and conclusions of law. After reviewing the matter, the Court 8 concludes 9 Commissioner must be reversed and the matter remanded. that for the reasons set forth, the decision of the 10 11 I 12 THE ALJ DID NOT ARTICULATE SPECIFIC AND LEGITIMATE REASONS TO 13 REJECT THE OPINIONS OF PLAINTIFF S TREATING PHYSICIAN, DR. KANENGISER 14 Plaintiff s severe impairments consist of morbid obesity; 15 probable degenerative joint disease of the bilateral knees; probable 16 obstructive sleep apnea; and major depression. (AR 86.) 17 The ALJ assessed Plaintiff s residual functional capacity ( RFC ) 18 as including a restricted ability to perform light work as defined in 19 20 CFR § 404.1567(b). 20 walk up to six hours in an eight-hour workday, and sit for up to six 21 hours in an eight-hour workday. (AR 88.) Plaintiff takes exception to 22 these findings, because his treating physician, Dr. Kanengiser, opined 23 that Plaintiff would not be capable of these exertional activities. 24 Dr. Kanengiser is, without dispute, Plaintiff s treating physician, 25 and is thus entitled to have his opinions accorded special weight, 26 while at the same time not being treated as necessarily conclusive as 27 to either physical condition or the ultimate issue of disability. See 28 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989); Magallanes The ALJ found that Plaintiff can stand and/or 2 1 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Indeed, it is well 2 established in this Circuit that if the treating physician s opinion 3 is controverted, it may be rejected only on the basis of articulated 4 specific and legitimate reasons. (See Thomas v. Barnhart, 278 F.3d 5 947, 957 (9th Cir. 2002); Magallanes, 881 F.2d at 751.) 6 also reject the opinion of a treating physician if it is brief, 7 conclusory or it is not adequately supported by clinical findings. 8 Thomas, 278 F.3d at 957. An ALJ may 9 In this case, for reasons which are not clearly articulated in 10 the Decision, the ALJ gave some weight to Dr. Kanengiser s opinions, 11 which he included in the RFC findings. (AR 91-92.) 12 remaining 13 including the stand/walk and sitting limitations, the ALJ determined 14 to accord them little weight, concluding that, The assessment on its 15 face lacks medically sufficient diagnostic bases for the extreme 16 limitations 17 Kanengiser s progress notes offer little, if any, clinical signs 18 pain [sic] ... that would support the extreme exertional limitations 19 as assessed. (Id.) limitations assessed. assessed (AR by 92.) Dr. The Kanengiser, ALJ As to the specifically believed that Dr. 20 The ALJ instead accepted the stand/walk and sitting limitations 21 assessed by a one-time consultative examiner, Dr. Karamlou, who 22 examined Plaintiff on July 16, 2010. (AR 215-217.) 23 very brief two-page report appears to reflect a correspondingly brief 24 examination. 25 which Dr. Karamlou concluded revealed some tenderness, but ranges of 26 motion appear normal. 27 which he summarizes his own objective testing as follows: 28 Dr. Karamlou s There is only a passing reference to Plaintiff s knees, Contrast this to Dr. Kanengiser s report, in There is evidence of left knee degenerative joint disease 3 1 with 2 tenderness on the right. 3 tenderness over the true knee joint, and slight (AR 247.) 4 5 Dr. Kanengiser also factored in Plaintiff s morbid obesity by 6 noting that Plaintiff s limitations are manifold and compounding. 7 His morbid obesity has limited his physical activities due to severe 8 knee pain, back pain, and dyspnea. (AR 248.) 9 in Dr. Karamlou s report of any possible effects on Plaintiff s 10 ability to stand and walk from his knee pain, or his obesity, which 11 are documented. 12 There is no discussion The Court must therefore search for some possible reasons in the 13 Decision 14 conclusions, based on a specific and legitimate reasons basis. 15 supporting the ALJ s rejection of Dr. Kanengiser s The Commissioner s position is that the ALJ did provide specific 16 and legitimate reasons to reject Dr. Kanengiser s opinions. The 17 Commissioner points out that the ALJ found that there was no objective 18 basis for Dr. Kanengiser s opinion that Plaintiff could not stand/walk 19 for more than two hours in an eight-hour workday, or that he would be 20 unable to perform any postural activities. (JS at 11, citing AR 92, 21 257-258.) The Court does not find this position to be meritorious, in 22 that Dr. Kanengiser is the treating physician, and in his February 22, 23 2011 report, which provides the exertional limitations, he indicates 24 that it is based on a comprehensive exam performed on January 19, 25 2011. (AR 247.)1 26 254-255) do not simply repeat Plaintiff s subjective complaints; they In any event, Dr. Kanengiser s progress notes (AR 27 1 28 If the ALJ felt that he required the actual examination test results, he should have developed the record by requesting them. 4 1 document ongoing treatment. 2 The Commissioner notes the ALJ s reliance on a history of 3 conservative treatment, or lack of treatment, as a basis for 4 depreciating the severity of Plaintiff s impairments. (See JS at 12- 5 13.) 6 as a severe impairment, Plaintiff was faulted for not pursuing 7 treatment for that condition. (AR 91.) During the hearing, the ALJ 8 asked Plaintiff about Dr. Kanengiser s recommendation that he would 9 need a sleep study, and whether Plaintiff had undertaken this. 10 Plaintiff s response was, No, Your Honor. Can t afford it. (AR 55.) 11 Plaintiff continued, It s a significant amount of money and I, I 12 don t have the money to do it. (AR 56.) 13 hearing, Plaintiff testified that he has no income other than he might 14 receive from family and friends as gifts. 15 my family gives me money to exist. (AR 35-36.) For example, as to sleep apnea, although the ALJ diagnosed this At the outset of the He stated that, I just, I, 16 There is no evidence in the record that Plaintiff had the 17 financial ability to obtain the types of treatment which the ALJ 18 believes would have successfully treated his impairments.2 19 beyond question that if a claimant cannot afford medical treatment, 20 the lack of that treatment cannot be held against the claimant. 21 Gamble v. Chater, 68 F.3d 319, 320-21 (9th Cir. 1995). It is See 22 23 2 24 25 26 27 28 The Commissioner faults Dr. Kanengiser, and presumably depreciates the credibility of his opinion, by noting that Dr. Kanengiser failed to prescribe pain or sleep medications. There is no medical evidence in the record in this case from a medical expert or any other source that sleep medications are an effective treatment for sleep apnea, or that pain medications can alleviate mobility limitations in an individual who suffers from morbid obesity and degenerative knee disease. The complexity and interrelatedness of Plaintiff s severe impairments should, on remand, be more carefully addressed by qualified medical professionals. 5 1 As Plaintiff persuasively argues in his Reply, what this issue 2 boils down to is that there are two competing opinions: that of the 3 treating physician, and that of the consultative examiner. 4 absent in the Decision are specific and legitimate reasons to reject 5 a critical portion of the treating physician s opinion, or even any 6 persuasive reason to accept the contrary opinion of the consultative 7 examiner. What is For this reason, the matter must be remanded for hearing. 8 9 II 10 THE ALJ FAILED TO PROPERLY EVALUATE PLAINTIFF S CREDIBILITY 11 Plaintiff testified as to the effects of his physical 12 impairments, in terms of substantial pain, and also the debilitating 13 effects of his depression. 14 Plaintiff s assertions, and the Court must determine whether that 15 evaluation should be accorded deference. 16 forth, the Court finds that the credibility assessment does not meet 17 accepted standards. 18 The ALJ depreciated the credibility of For the reasons to be set The evaluation of a claimant s credibility is subject to well 19 established case law and Regulations. Briefly stated, the ALJ must 20 set forth clear and convincing reasons to reject pain limitation 21 testimony. 22 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 23 are enumerated factors which must be evaluated in the credibility 24 assessment, 25 416.929(c); and Social Security Ruling ( SSR ) 96-7p. 26 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); which are set forth in 20 C.F.R. §§ Further, there 404.1529(c); See also Sair 27 The ALJ s evaluation of Plaintiff s credibility spans several 28 pages of the Decision (AR 88-91), but a careful reading of the 6 1 discussion reveals that it relies upon a similar analysis that was 2 utilized by the ALJ in depreciating Dr. Kanengiser s opinions. 3 ALJ numerous times comments on a lack of objective findings, a lack of 4 treatment, or conservative treatment. Although the ALJ acknowledged 5 Plaintiff s clear statement at the hearing that he could not afford 6 such things as a sleep study (polysomnography), he was nevertheless 7 faulted 8 undergoing such a study. (AR 89.) 9 through a depreciated credibility assessment for The not With regard to the ALJ s suspicion that Plaintiff voluntarily 10 terminated 11 impairments (AR 91), the fact is that the ALJ also found that 12 Plaintiff could not perform his past relevant work because of his 13 severe impairments. (AR 92.) 14 looked for work (AR 91) cannot legitimately be used against him in a 15 credibility assessment. (20 C.F.R. § 404.1574(c).) 16 his prior work for reasons other than debilitating Further, the fact that Plaintiff has All in all, the Court finds that the ALJ s credibility assessment 17 is 18 credibility will be determined de novo. 19 20 21 not based on allowable factors, and on remand, Plaintiff s For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 22 23 24 DATED: October 25, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 25 26 27 28 7

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