Rolando R Vela v. Michael J Astrue, No. 5:2008cv00948 - Document 16 (C.D. Cal. 2009)

Court Description: MEMORANDUM DECISION by Magistrate Judge Stephen J. Hillman. For the foregoing reasons, the decision is reversed and remanded pursuant to Sentence Four of 42 U.S.C. §405(g). See attached document for further details. (es)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA- EASTERN DIVISION 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROLANDO VELA, ) ED CV: 08-0948-SH ) Plaintiff, ) MEMORANDUM DECISION ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security ) Administration, ) ) Defendant. ) ) ) I. PROCEEDINGS This matter is before the Court to review the Administrative Law Judge s ( ALJ ) denial of Plaintiff s application for Disability Insurance Benefits ( DIB ) benefits. Plaintiff and Defendant have filed their respective pleadings and the parties have filed a Joint Stipulation dated February 25, 2009. The parties have consented to the jurisdiction of the Magistrate Judge. 1 2 II. BACKGROUND Plaintiff filed an application for DIB benefits on October 1, 2003, alleging 3 disability as the result of back problems since September 14, 2001. The ALJ 4 determined that Plaintiff was disabled between September 24, 2001 and May 1, 5 2003, following diskectomy and nucleoplasty surgery on August 26, 2002 and a 6 spinal fusion on April 3, 2003. On May 10, 2003, Plaintiff applied for a 7 continuation of his disability benefits, however his application was denied. 8 Plaintiff s application was reconsidered and again denied on November 20, 2003. 9 Plaintiff filed a timely Request for Hearing on January 20, 2004 and a hearing was 10 held before ALJ John W. Belcher on November 18, 2004. ALJ Belcher denied 11 Plaintiff s DIB application on February 18, 2005. Plaintiff filed a Request for 12 Review of ALJ Belcher s decision, which the Appeals Council denied on October 13 14, 2005. Plaintiff filed a Complaint with this court, which remanded the case for 14 further proceedings on November 17, 2006. A new hearing was held before ALJ 15 Joseph D. Schloss on November 8, 2007. The ALJ issued an opinion on February 16 6, 2008, holding that Plaintiff was disabled only until May 1, 2003. Plaintiff 17 appealed from the Commissioner s denial of disability benefits, and filed a new 18 Complaint in this Court on July 15, 2008. 19 20 21 III. DISCUSSION Under 42 U.S.C à 405(g), this court reviews the Commissioner s decision to 22 determine if: (1) the Commissioner s findings are supported by substantial 23 evidence; and (2) the Commissioner used proper legal standards. DeLorme v. 24 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 25 than a mere scintilla, Richardson v. Perales, 402 U.S. 389, 401 (1971), but less 26 than a preponderance. Desrosiers v. Secretary of Health & Human Servs., 846 F. 27 2d 59, 60 (9th Cir. 1973), cert denied., Torske v. Weinberger, 417 U.S. 933 (1974); 28 Harvey v. Richardson, 451 F. 2d 589, 590 (9th Cir. 1971). -2- It is the duty of this court to review the record as a whole and to consider 1 2 adverse as well as supporting evidence. Green v. Heckler, 803 F. 2d 528, 529-30 3 (9th Cir. 1986). The court is required to uphold the decision of the Commissioner 4 where evidence is susceptible of more than one rational interpretation. Gallant v. 5 Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). The court has the authority to 6 affirm, modify or reverse the Commissioner s decision with or without remanding 7 the cause for rehearing. 42 U.S.C. § 405 (g). Remand is appropriate where 8 additional proceedings would remedy defects in the Commissioner s decision. 9 McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). The Commissioner has established a five-step sequential evaluation for 10 11 determining whether a person is disabled. First, it is determined whether the 12 person is engaged in substantial gainful activity. If so, disability benefits are 13 denied. Second, if the person is not so engaged, it is determined if the person has a 14 medically severe impairment or combination of impairments. If the person does 15 not have a severe impairment or combination of impairments, benefits are denied. 16 Third, if the person has a severe impairment, it is determined whether the 17 impairment meets or equals one of a number of listed impairments. If the 18 impairment meets or equals a listed impairment, the person is conclusively 19 presumed disabled. Fourth, if the impairment does not meet or equal the listed 20 impairments, it is determined whether the impairment prevents the person from 21 performing past relevant work. If the person can perform past relevant work, 22 benefits are denied. Fifth, if the person cannot perform past relevant work, the 23 burden shifts to the Commissioner to show that the person is able to perform other 24 kinds of work. 20 C.F.R. §404.1520 (1994); Bowen v. Yuckert, 482 U.S. 137, 25 140-2 (1987). 26 /// 27 /// 28 /// -3- 1 Issue 1: The Second ALJ fully and fairly developed the record by 2 considering all available medical evidence. 3 The ALJ has an independent duty to fully and fairly develop the record to 4 assure that the claimant s interests are considered. Smolen v. Chater, 80 F.3d 5 1273, 1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 6 1983)). Where evidence is ambiguous, or the ALJ finds the record is inadequate 7 to allow for proper evidentiary evaluation, the ALJ has a duty to conduct an 8 appropriate inquiry. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 9 Plaintiff contends that the ALJ failed to fully and fairly develop the record 10 because he did not order an objective consultative exam of Plaintiff, and 11 disregarded the findings of Dr. Cazares, Plaintiff s chiropractor, and the December 12 2004 findings of Dr. Platt, Plaintiff s treating orthopedic surgeon. Defendant 13 argues that the ALJ s denial of Plaintiff s DIB claim was grounded on substantial 14 evidence, consisting of the December 2003 findings of Dr. Platt and the testimony 15 of a medical expert, Dr. Lyons. As such, Defendant contends that the ALJ s duty 16 to conduct further inquiry was not triggered. 17 Plaintiff was found disabled between September 14, 2001 and May 1, 2003. 18 (AR 408). During this period, Plaintiff underwent diskectomy/nucleoplasty 19 surgery on August 26, 2002, and a spinal fusion on April 3, 2003. Plaintiff s 20 prognosis following his spinal fusion was good, particularly after the removal of 21 his PCA tube. Following Plaintiff s initial post-operative prognosis, he was 22 examined by chiropractor Dr. Marco Cazares on September 24, 2003, and by 23 treating orthopedic surgeon, Dr. Arthur Platt, in December 2003. (AR 411). 24 Although Dr. Cazares found that Plaintiff was disabled, Dr. Platt s December 2003 25 examination of Plaintiff found him permanent and stationary and able to perform 26 light work, consisting of standing or walking and minimum demands for physical 27 effort. (AR 321). 28 Since no treating or examining medical records exist post Plaintiff s -4- 1 December 2003 examination by Dr. Platt, both ALJs relied on the testimony of 2 non-examining and non-treating physician, Dr. James Lyons, to support the denial 3 of Plaintiff s DIB claim. Dr. Lyons testified that Plaintiff s disability ended on 4 May 1, 2003 when his PCA tube was removed, which is supported by Dr. Platt s 5 subsequent finding that Plaintiff was not disabled. As such, Dr. Lyons testimony 6 amounts to substantial evidence since the findings of non-treating and non- 7 examining physicians are given such weight when supported by other evidence in 8 the record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 9 Although Dr. Cazares found Plaintiff disabled in September of 2003, 10 contradicting Dr. Lyons testimony, a chiropractor s medical opinion is not 11 afforded substantial weight. 20 C.F.R. §404.1513 (a) (2008). This is especially 12 true since Dr. Cazares finding of disability was also contradicted by Dr. Platt s 13 December 2003 examination of Plaintiff, which stated that Plaintiff was able to 14 perform light work. Because Dr. Platt was Plaintiff s treating physician, this 15 opinion is afforded substantial weight. 16 Plaintiff also contends that Dr. Platt s December 2004 assessment of 17 Plaintiff s RFC should be afforded substantial weight since Dr. Platt was Plaintiff s 18 treating orthopedic surgeon. However, this Court previously upheld the first ALJ s 19 rejection of Dr. Platt s December 2004 assessment, since it was conducted without 20 an examination and stated that Plaintiff was seriously disabled, sharply 21 contradicting the findings of his December 2003 examination of Plaintiff. Because 22 the December 2004 assessment was issued without an examination of Plaintiff and 23 upon Plaintiff s counsel s request, the ALJ determined that this assessment lacked 24 credibility. This Court found no fault with the first ALJ s analysis in regards to 25 Dr. Platt s opinions and affirmed the ALJ s findings on the grounds that they 26 were supported by substantial evidence and clearly stated. (AR 420). For the 27 same reason, the ALJ cannot be faulted for preventing Plaintiff s counsel from 28 cross-examining the medical expert regarding Dr. Platt s December 2004 -5- 1 assessment. 2 Plaintiff also contends that the ALJ should have ordered an objective 3 consultative exam, as he stated he would at Plaintiff s November 8, 2007 remand 4 hearing. However, without any medical records after 2003, it would be impossible 5 to determine how the findings from a new consultative exam would bear on the 6 relevant period of claimed disability, starting in May of 2003. Thus, the ALJ was 7 correct in stating that no longitudinal medical records or any treatment for several 8 years supported his decision not to order a consultative examination. 9 The second ALJ properly assessed the medical evidence in the record since 10 his decision to deny Plaintiff s DIB claim was based on the examination of 11 Plaintiff s treating orthopedic surgeon, Dr. Platt, and the testimony of the medical 12 expert, Dr. Lyons. Additionally, Dr. Platt s December 2004 assessment of 13 Plaintiff, issued without an examination, was properly disregarded by the ALJ 14 since the District Court had previously held that this assessment was without merit. 15 Lastly, the lack of longitudinal medical records following Plaintiff s spinal fusion 16 supports the ALJ s decision not to order a consultative exam, since a new exam 17 would not reflect upon the claimed period of disability beginning nearly six years 18 prior. Thus, the ALJ s duty to make further factual findings was not triggered. 19 20 Issue 2: The ALJ improperly assessed Plaintiff s subjective complaints and 21 credibility. 22 To find a claimant not credible, the ALJ must rely on reasons unrelated to 23 the subjective testimony, on conflicts between his testimony and his own conduct, 24 or on internal contradiction in that testimony. Plaintiff contends that the second 25 ALJ discounted Plaintiff s credibility by relying upon a lack of objective evidence 26 in the record corroborating Plaintiff s pain allegations. Defendant argues, 27 however, that the ALJ properly relied on Plaintiff s unexplained failure to seek 28 treatment as evidence that Plaintiff s pain allegations were not credible. -6- 1 It is always proper for an ALJ to consider the lack of medical evidence to 2 support a claimant s allegations. 20 C.F.R. §§404.1529(c)(1) & (2) (2008). 3 Additionally, the Commissioner may rely on Plaintiff s unexplained failure to seek 4 treatment as evidence that Plaintiff s pain allegations are not credible. Gallant v. 5 Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984). 6 Plaintiff claims that he suffered severe pain during the six years following 7 his back surgeries in 2002 and 2003. Plaintiff had not sought treatment for his 8 alleged severe and ongoing pain since December 2003. In spite of his failure to 9 seek treatment, Plaintiff asserts that the objective medical evidence in the record 10 indicating that he underwent surgery in late 2002 and early 2003 supports his pain 11 allegations. The second ALJ based his finding that Plaintiff s pain allegations 12 lacked credibility solely on Dr. Platt and Dr. Lyons opinions that Plaintiff was not 13 disabled and Plaintiff s failure to seek treatment for his pain. However, the second 14 ALJ never even heard plaintiff testify as to his pain symptoms. (A.R. 465-481). A 15 lack of objective findings may not provide the sole basis for discounting a 16 claimant s testimony, Morgan v. Apfel, 169 F.3d 595 (9th Cir. 1999). The second 17 ALJ s credibility assessment was premised solely upon a lack of objective medical 18 evidence. As such, the second ALJ may have been when he concluded that it 19 seems entirely reasonable to assume that if the claimant were truly unable to work 20 due to his back problems and related pain, he would continue to seek treatment in 21 an attempt to ameliorate those problems. That he has not done so renders his 22 allegations fundamentally implausible. (AR 397). However, the second ALJ 23 never confronted the plaintiff with this assumption, nor give plaintiff an 24 opportunity to explain who he did not seek pain treatment. 25 Plaintiff also contends that the ALJ did not consider that Plaintiff failed to 26 seek treatment out of fear of treatment, as well as financial hardship. However, 27 Plaintiff never testified to these reasons at his hearing. 28 -7- IV. ORDER 1 2 3 4 For the foregoing reasons, the decision is reversed and remanded pursuant to Sentence Four of 42 U.S.C. §405(g). DATED: August 19, 2009 5 6 __________________________________ STEPHEN J. HILLMAN 7 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-

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