Michelle Jackson v. Carolyn W Colvin, No. 2:2012cv10733 - Document 24 (C.D. Cal. 2013)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton re: REQUEST to Proceed In Forma Pauperis, Declaration in Support 1 , MOTION to Stay Case pending Restoration of appropriations to DOJ and SSA 18 , First REQUEST for Order fo r Joint Amended Scheduling 23 . This Memorandum Opinion will constitute the Courts findings offact and conclusions of law. The decision of theCommissioner must be reversed and the matter remanded. Plaintiffs credibilitywill be reevaluated, and impermissible bases for credibilityassessment will no be utilized. This matter will be remanded for further hearing consistent with this Memorandum Opinion. (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 MICHELLE JACKSON, 12 Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-10733-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 ) provided 1 specific and legitimate reasons for rejecting the opinion of 2 the treating physician; and 3 2. 4 5 Whether the ALJ failed to provide clear and convincing reasons to reject Plaintiff s subjective complaints. (AR at 4.) 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 THE ALJ FAILED TO PROVIDE SPECIFIC AND LEGITIMATE REASONS 14 TO REJECT THE OPINION OF HER TREATING DOCTOR 15 Plaintiff and filed her disability Title II insurance application benefits for on a June period 15, of 16 disability 2009, 17 alleging an onset date of February 28, 2009, due to high blood 18 pressure, chronic obstructive pulmonary disease ( COPD ) and asthma. 19 (AR 24.) Her claim was denied administratively and after she received 20 the hearing she requested from the ALJ, an unfavorable Decision issued 21 (AR 24-31), which is the basis for this lawsuit. 22 The ALJ determined that Plaintiff s residual functional capacity 23 ( RFC ) would enable her to perform light work as defined in 20 C.F.R. 24 § 404.1567(b) with limitations of only occasional postural activities, 25 no climbing of ladders, avoidance of concentrated exposure to dust, 26 fumes, extremes in temperature, and hazards. (AR 28.) 27 The ALJ was well aware of Plaintiff s history of hypertension and 28 treatment for that condition, and was aware that she had suffered a 2 1 heart attack in July 2008. Indeed, the ALJ referenced medical records 2 which reflect treatment that predates the alleged onset date. (See, 3 e.g., AR 29: The claimant s medical records show that claimant 4 repeatedly reported chest pain. ) 5 medical treatment records dating from July 2008 to November 2008 (AR 6 260-318), July 28, 2008 to April 17, 2009 (AR 350-408), June 12, 2007 7 to October 13, 2010 (AR 430-546), and then September 23, 2010 to 8 October 2, 2010 (AR 581-591). 9 hospitalized in July 2008 In so stating, the ALJ referenced The ALJ noted that after Plaintiff was for a myocardial infarction, a 10 catheterization was attempted but discontinued. (AR 29.) Thus, it is 11 clear that the ALJ considered pre-onset date medical records in making 12 a determination of whether Plaintiff is disabled. 13 In determining Plaintiff s RFC, however, the ALJ discussed only 14 three sources: her treating physician, Dr. Hussain; a consultative 15 examiner, Dr. Benrazavi; and the State Agency non-examining physician. 16 (AR 29-30.) 17 discussed a Physical Residual Functional Capacity Questionnaire (AR 18 547-551), which Dr. Hussain completed. (See Discussion at AR 29.) The 19 ALJ provided only two articulated reasons for rejecting Dr. Hussain s 20 opinion: first, because it is not consistent with or supported by 21 substantial medical evidence of record, and second, that it is based 22 only on Plaintiff s subjective allegations without any objective 23 assessment 24 articulating these reasons, the ALJ Decision runs directly against 25 Ninth 26 generalizations, and, indeed rejects them as being adequate to sustain 27 a decision. See Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 28 2001). With regard to the treating physician, the ALJ only of Circuit the law veracity which of those cautions complaints. against (AR reliance 30.) on In such To say that medical opinions are not supported by sufficient 3 1 objective findings or are contrary to the preponderant conclusions 2 mandated by the objective findings does not achieve the level of 3 specificity our prior cases have required. 4 offer than his conclusions. He must set forth his own interpretations 5 and explain why they, rather than the doctor s, are correct. 6 Embry v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 1988). 7 The ALJ must do more than See The lack of specificity articulated in the Decision becomes even 8 more apparent when one examines the longitudinal 9 Plaintiff s hypertension, COPD, and other diseases. record of Neither party 10 comments on a February 11, 2008 internal medicine consultation report 11 prepared by Dr. Tamiry. (AR 247-255.) 12 predated Plaintiff s heart attack, but Plaintiff was clearly suffering 13 from hypertension at the time, and Dr. Tamiry advised that her 14 functional capacity would permit the exertion required of light work 15 only if the blood pressure is under reasonable control, ... (AR 16 254.) 17 years of medications, which have been adjusted many times, Plaintiff s 18 blood pressure is, if not out of control, largely uncontrolled. 19 Hussain reviewed these notes, and likely relied upon them in making 20 her evaluation. 21 This examination and report What is clear from a review of this record is that, despite Dr. As to the other reason articulated by the ALJ - that Dr. 22 Hussain s 23 subjective complaints - that too must fall by the wayside as an 24 inadequate and incorrect evaluation and analysis of the record. 25 Again, there is objective evidence of years of hypertension, COPD, and 26 corresponding complaints of shortness of breath. (See, AR 562.) 27 28 conclusions appear to be solely based on Plaintiff s Delving further into the basis for the RFC determination in the Decision yields only more questions. 4 Dr. Benrazavi, who did a 1 consultative internal medicine examination, assessed that Plaintiff 2 was capable of medium exertional work (AR 416), a fact noted by the 3 ALJ, who rejected these conclusions because they failed to consider 4 Plaintiff s allegations of pain and fatigue. (AR 30.) 5 Court is at a loss to understand how Plaintiff s fatigue and pain, if 6 they were in fact accepted as valid by the ALJ, were factored into the 7 RFC. 8 Dr. Benrazavi s assessment that Plaintiff could do medium exertional 9 work to a light work restriction based on pain and/or fatigue. Yet, the The Court can only speculate that the ALJ may have been reducing Of 10 course, the Court s role is not to speculate, but to evaluate an ALJ s 11 decision to determine whether it is based on substantial evidence. 12 That is simply not possible given the ambiguity in the Decision. 13 Finally, the ALJ s articulated reliance on the conclusions of the 14 State Agency non-examining physician because his findings are both 15 consistent with and supported by the substantial medical evidence of 16 record (AR 30) is, again, a non-reviewable conclusion, because the 17 Court is not informed by the Decision exactly what objective evidence 18 supports the non-examining physician s opinion. 19 Given the above, this matter clearly must be remanded for a new 20 hearing. 21 physician s functional capacity assessment must receive deference, but 22 at 23 depreciated, it must be based on specific and legitimate reasons, as 24 required by well-recognized Ninth Circuit case law. the The Court is not making a determination that the treating same time, if her conclusions are to be rejected or 25 The Court will address Plaintiff s second issue, which concerns 26 the depreciation by the ALJ of her credibility, because it relates to 27 the first. 28 objective medical evidence and her claimed symptoms. (AR 30.) One reason cited by the ALJ is an inconsistency between 5 As the 1 Court has noted in its determination of the first issue, the ALJ s 2 analysis of the objective evidence does not withstand scrutiny. 3 Therefore, 4 impermissible reason. 5 in and of itself, in Plaintiff s case, this is an Also impermissible is the ALJ s assertion of and reliance upon a 6 lack of 7 conservative treatment. 8 financial limitations or inability to pay for medical treatment, which 9 clearly appear in the record. For example, at the hearing, when asked of her for various conditions, or receipt of only Here, the ALJ failed to deal with issues of 10 the 11 insurance, and the ALJ responded that she understood this. (AR 54.) 12 Yet, 13 credibility was assessed. 14 Plaintiff s testimony that she is looking for work and sends out her 15 resume. 16 offered a job back in medical collections whether she would be able to 17 do it, Plaintiff plainly answered, Well, considering I m the only one 18 that has an income, and I have to pay rent, I would try to do it. (AR 19 63.) 20 name treatment Plaintiff cardiologist, was faulted Plaintiff for indicated conservative she treatment has when no her This also relates to the ALJ s reliance on In fact, at the hearing, when the ALJ asked if she were With regard to the nature of her medical care, there is a 21 question as to whether it in fact was conservative. 22 after a myocardial infarction, Plaintiff received a catheterization 23 which was unsuccessful. 24 to 25 hypertension, as the Court has noted in this Opinion, Plaintiff has 26 been consistently treated, but her hypertension remains, at best, 27 difficult to control. 28 proceed with that For example, It was determined that it would not be safe kind of treatment. With regard to her Plaintiff alleged that she could not walk for any length of time, 6 1 which the ALJ found to be untrue and unsupported by the objective 2 evidence, but it does not appear that the ALJ considered Plaintiff s 3 morbid obesity, or the fact that she suffers from severe COPD and has 4 bilateral swelling of her legs, along with uncontrolled hypertension. 5 (AR 554.) 6 of difficulty walking should be analyzed to determine if they are 7 indeed valid. 8 9 10 11 12 13 The relationship of these conditions to Plaintiff s claims For the foregoing reasons, on remand, Plaintiff s credibility will be reevaluated, and impermissible bases for credibility assessment will no be utilized. This matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 14 15 16 DATED: October 30, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 7
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