Martha I Perez v. Carolyn W Colvin, No. 2:2012cv10369 - Document 16 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiffs application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. This matter will be remanded for further hearing consistent with this Memorandum Opinion. 1 (gr)
Download PDF
<![CDATA[
1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 MARTHA I. PEREZ, 12 Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-10369-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 ) erred in 1 discounting the medical opinions of treating physicians 2 Pappas, Gutierrez, Fuenzalida, and Barba; and 3 2. 4 5 Whether the ALJ erred in finding that Plaintiff s subjective complaints are not credible. (JS at 6.) 6 7 This Memorandum Opinion will constitute the Court s findings of 8 fact and conclusions of law. After reviewing the matter, the Court 9 concludes 10 that for the reasons set forth, the decision of the Commissioner must be reversed and the matter remanded. 11 12 I 13 SUBSTANTIAL EVIDENCE DOES NOT SUPPORT THE ALJ S 14 DETERMINATION OF PLAINTIFF S RESIDUAL FUNCTIONAL CAPACITY 15 On May 15, 2009, Plaintiff filed applications for disability 16 insurance benefits and Supplemental Security Income, alleging an onset 17 date of June 4, 2008. 18 granted a hearing before an ALJ (AR 45-80), at which Plaintiff 19 testified through an interpreter, and testimony was taken from a 20 vocational expert ( VE ), and a lay witness. 21 2011, the ALJ rendered a written Decision (AR 23-31), and there 22 reached a determination that Plaintiff has not been under a disability 23 from the alleged onset date to the date of the Decision. (AR 31.) 24 reasons to be set forth, the Court finds that this determination is 25 not supported by substantial evidence, and will be reversed and 26 remanded for a new hearing. 27 28 After administrative denials, Plaintiff was Thereafter, on May 13, For Plaintiff s previous work was as a banquet server in a hotel and then as an in-home caregiver until 2007. (AR 53.) 2 She suffered a 1 stroke on June 3, 2008 (AR 50-54.) At that time, she indicated to her 2 medical professionals that she experienced dizziness and poor balance 3 and had fallen because of that several times. (AR 54-55.) 4 incontinence problems and indicates she has been diagnosed with 5 chronic hematuria and an overactive bladder. (AR 63-67.) 6 complains of severe lower back pain which radiates to the bottom of 7 her foot. (AR 54.) She has been treated by her neurologist for 8 depression. (AR 63.) She has been prescribed medications to combat 9 her dizziness and vertigo, back pain, blood pressure, depression, and 10 for prevention of strokes, and has had a lack of long term success 11 from medications intended to address her urinary problems. (AR 5-58, 12 63, 66.) She has She also 13 Following her stroke, Plaintiff was examined and treated by 14 family practitioner Dr. Pappas in July 2008, at which point she had 15 improved somewhat but still experienced dizziness, vertigo, balance 16 problems, gait ataxia, and persistent headaches. (AR 282.) 17 symptoms were again reported to her doctors in January 2009 (AR 261), 18 May 2009 (AR 258), and at other times. 19 In 2010, Plaintiff was treated by family These practitioner Dr. 20 Gutierrez and at that time had a mild facial droop. (AR 383.) 21 Dr. Pappas and a neurologist, Dr. Fuenzalida, indicated that Plaintiff 22 required use of an assistive device for walking (AR 282), and Dr. 23 Fuenzalida, on January 28, 2011, indicated that he has been following 24 Plaintiff since her stroke, and that he had changed her blood pressure 25 medication from Coumadin to Aggrenox, later changed to generics. (AR 26 27 28 3 Both 1 484.)1 2 hours in an eight-hour day, and can stand or walk only one hour. (AR 3 537.) He also noted that Plaintiff is depressed following her stroke. 4 (AR 538.) 5 carrying up to ten pounds occasionally. 6 reiterated by Dr. Fuenzalida in a letter dated June 24, 2011 in which 7 he also concluded that Plaintiff s impairments would result in her 8 being absent from work more than three days per month. (AR 548.) 9 will be noted, this is a significant conclusion, in that at the 10 hearing, when this absence from work factor was incorporated into a 11 hypothetical question, the VE concluded that this would preclude 12 competitive employment. (AR 75-76.) 13 Fuenzalida s opinion was speculative, but the Court rejects that as 14 a non-analytic conclusion, as will be more fully discussed. Dr. Fuenzalida assessed that Plaintiff can sit for eight Dr. Fuenzalida also limited Plaintiff to lifting or These conclusions were As The ALJ determined that Dr. 15 With regard to Plaintiff s incontinence issues, she was referred 16 by Dr. Gutierrez to a urologist, Dr. Martinez, who examined Plaintiff 17 and wrote a letter to Dr. Gutierrez on March 26, 2010. (AR 514.) In 18 19 20 21 22 23 24 25 26 27 28 1 The Commissioner makes much of the fact that about five months after Plaintiff s stroke, Dr. Pappas said that she would remain on Coumadin for the rest of her life. (AR 232.) The Commissioner makes no comment on the fact that the neurologist, Dr. Fuenzalida, discontinued Coumadin, but changed the applicable drug to Aggrenox. Although Dr. Pappas indicated that doctors were working to control her blood pressure and hope gradually her neurological symptoms will abate (AR 232), Dr. Fuenzalida completed a Stroke Impairment Questionnaire (AR 534-539) in March 2011 stating, in part, that [Plaintiff] has a residual gait ataxia from the stroke [sic] she needs a cane to help her gait [sic] this is fixed neurological deficit. No further recovery is predicted. (AR 534.) As the Court will discuss, much of the underpinning for the ALJ s determination of nondisability is based on his lay conclusion that Plaintiff s ambulation problems stem from high blood pressure. The ALJ failed to comment on or evaluate Dr. Fuenzalida s apparent conclusion that Plaintiff s problems had a neurological cause. 4 1 that letter, Dr. Martinez indicated a treatment plan, and on May 7, 2 2010, followed up with another letter indicating that progress had 3 been made, and that Plaintiff now suffers no urgency incontinence 4 whatsoever. (AR 449.) 5 At the hearing, Plaintiff indicated that her urinary symptoms had 6 returned and that they had failed to respond to three different 7 medications, but she had not been able to follow up with Dr. Martinez. 8 (AR 66.) In October 2010, Dr. Gutierrez attested that Plaintiff again 9 complained of some urinary incontinence (AR 354-357), and urologist 10 Dr. Barba completed a Bladder Problem Impairment Questionnaire in 11 March 2011 (AR 541-545), which diagnosed chronic hematuria and 12 overactive bladder with urgency urinary incontinence. Dr. Barba s 13 prognosis for Plaintiff was poor. (AR 541.) It appears that at this 14 time Plaintiff was beginning a course of treatment involving tibial 15 nerve stimulation (see AR 542-543), but the effectiveness of that new 16 therapy was undetermined at the time of the hearing in this matter. 17 Plaintiff described her urinary frequency to Dr. Barba as 18-20 times 18 per 24 hours and 10 times during an eight-hour workday. (AR 543.) 19 The ALJ determined Plaintiff s RFC as enabling her to perform 20 light work which requires an ability to exert up to 20 pounds of force 21 occasionally and up to 10 pounds of force frequently. 22 assessed that Plaintiff can stand and walk up to six hours and sit up 23 to six hours in an eight-hour workday with normal breaks, provided 24 that her standing and walking does not exceed one hour at a time after 25 which she must be allowed to sit at least five minutes before resuming 26 standing and walking. 27 issues in this case were assessed; however, the ALJ indicated that she 28 would require a rest room not remote from her work station to He also Additional limitations not relevant to the 5 1 accommodate her need to periodically urinate. (AR 26.) 2 The medical sources which are identified in the Decision include 3 discussion of Dr. Pappas opinion; Dr. Gutierrez ; Dr. Fuenzalida s; 4 and Dr. Barba s (erroneously referred to as Dr. Barma). (AR 28-29.) 5 As to the ALJ s evaluation of Dr. Pappas conclusions, he relied 6 on his own conclusion that Dr. Pappas had been working to control 7 Plaintiff s blood pressure, which medical records showed was not under 8 control, but concluded that Dr. Pappas opinion is contradicted by 9 other doctors records. (AR 29.) 10 With regard to Dr. Gutierrez, the ALJ simply made a conclusory 11 statement that despite the fact that she is Plaintiff s primary care 12 physician, little weight is accorded to the restrictions she imposes 13 on standing, walking, and reaching, as they are not well supported by 14 clinical data and/or diagnostic findings; and her statement concerning 15 absences is speculative. (AR 28-29.) 16 The ALJ noted that Dr. Fuenzalida, the neurologist, had only seen 17 Plaintiff four times, but rejected Dr. Fuenzalida s significant 18 conclusion that Plaintiff could only stand or walk one hour within an 19 eight-hour workday because it was without sufficient foundation, 20 particularly in light of the fact that magnetic resonance imaging 21 shows the lumbar spine is within normal limits and the thoracic spine 22 has only some slight degenerative disc disease. (AR 29.) 23 Finally, the ALJ rejected Dr. Barba s opinion with regard to 24 Plaintiff s significant urinary incontinence issues because it did not 25 seem reasonable in light of [Plaintiff s] treatment records ... his 26 conclusions are not borne out by treatment records from a year earlier 27 which indicate her bladder problems had been resolved. (Id.) 28 It is of course hornbook law that an ALJ may only reject 6 1 uncontradicted opinions 2 convincing 3 inconsistent with other evidence in the record, there must still be 4 specific and legitimate reasons cited in the Decision. See Reddick v. 5 Chater, 157 F.3d 715, 725 (9th Cir. 1998), Lester v. Chater, 81 F.3d 6 821, 830 (9th Cir. 1995). 7 is 8 physicians by generic comments that such opinions are not supported by 9 objective findings or are contrary to some unstated medical evidence. reasons, entirely and insufficient of treating if a physicians treating for and opinion physician s clear is As the Ninth Circuit has clearly stated, it for an ALJ to reject the opinions of 10 See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 11 the Court to perform a sufficient level of judicial review, an ALJ s 12 Decision must set forth the reasons for rejection of particular 13 evidence based on specific discussion of contradictory evidence and 14 why one is more persuasive than the other. 15 occur as to any of the physicians who treated Plaintiff. 16 to that deficiency, this ALJ did not rely upon a medical expert, but 17 instead, 18 neurological problems as being based on blood pressure issues, despite 19 the fact that Plaintiff was treated by neurologists who assessed 20 neurological causes for Plaintiff s impairments, such as gait ataxia. 21 Moreover, the ALJ seemed unwilling to accept that medications which 22 might have helped such things as incontinence at one point might have 23 become 24 subjective complaints, it might be more reasonable to reject them, but 25 in this case, there is clear and substantial evidence that Plaintiff s 26 medications were changed, and she was beginning a new course of 27 treatment for her incontinence problems which had not yet been 28 successful. substituted ineffective. his If own this lay was 7 In this case, that did not opinion just In order for an as to issue In addition causation of of Plaintiff s 1 With regard to rejection of Dr. Fuenzalida s conclusions, the ALJ 2 inserted his own interpretation of MRI imaging as to Plaintiff s 3 lumbar spine and his own conclusion that Plaintiff s thoracic spine 4 has only some slight degenerative disc disease. (AR 29.) 5 corroborated by any medical source, and the Court will note that the 6 Commissioner s reliance on the opinion of an examining neurologist, 7 Dr. Mays, from July 2009 (AR 283-286), has no relevance whatsoever, in 8 that the ALJ failed to even mention Dr. Mays conclusions, much less 9 rely on them. The Commissioner relies on seminal cases such as Batson 10 v. Commissioner of Social Security Administration, 359 F.3d 1190, 1195 11 (9th Cir. 2004) to argue that in this case the ALJ rightfully rejected 12 the opinions of treating physicians which are conclusory, brief and 13 unsupported by the record as whole by objective findings. (JS at 16.) 14 That is not at all the case here. 15 physicians, and their opinions were rejected despite being supported 16 by objective testing and examination. 17 have shown some improvement in her symptomology at times after her 18 stroke is not the determinative factor in assessing her continuing 19 condition. This is not Plaintiff was treated by these The fact that Plaintiff may 20 For the foregoing reasons, the matter will be remanded for 21 reconsideration of the opinions of Plaintiff s treating and examining 22 physicians, and additional evidence may be taken to determine the 23 issue of disability. 24 With regard to the assessment of Plaintiff s credibility 25 concerning subjective symptoms, the ALJ found Plaintiff not credible 26 to the extent that her complaints are inconsistent with the RFC 27 assessment. (AR 27.) 28 repeat the ALJ s evaluation of the objective medical evidence, which The reasons cited by the ALJ (AR 27-28) mostly 8 1 the Court has already discounted in remanding this for a new hearing. 2 An additional factor cited by the ALJ is that Plaintiff has received 3 an essentially conservative level of treatment not requiring any 4 hospitalization, 5 extraordinary 6 understanding what the ALJ would consider to be appropriate treatment 7 for the impairments and symptoms experienced by Plaintiff, especially 8 in the absence of any medical evidence that such additional or other 9 treatments might be effective. surgery, treatments. exquisite (AR 28.) therapies, or any The has difficulty Court other The ALJ apparently gave short shrift 10 to any consideration that neurological problems are difficult to 11 treat, that Plaintiff has had bladder problems which her physicians 12 have attempted to address with different types of treatment, thus far 13 unsuccessful, and that, as noted, Plaintiff continues to be treated 14 for 15 neurological than a result of hypertension. 16 Plaintiff that the ALJ s discounting of her credibility is largely 17 based upon substitution of his own medical judgment as to what 18 treatment 19 assessments, which the Court has already indicated are beyond his 20 expertise. See Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999); 21 Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 22 also, it appears that Plaintiff has diligently attempted to follow the 23 course of treatment recommended by her doctors. 24 physicians have referred her to specialists, such as neurologists and 25 urologists, where appropriate. 26 impairments which they have attempted to treat in various ways. 27 in all, the credibility assessment factors set forth by the ALJ in the 28 Decision are wholly insufficient. blood pressure might or issues, would but be her problems appropriate, appear to be more The Court agrees with and his own medical In this case Her primary treating All of these doctors have assessed All On remand, Plaintiff s credibility 9 1 will be redetermined in accordance with appropriate consideration of 2 her treatment history and the opinions of her treating physicians. 3 4 5 For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 6 7 8 DATED: August 19, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
]]>
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.
