Mario R Jimenez v. Commissioner of Social Security, No. 5:2009cv02144 - Document 25 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandh. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (bem)
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Mario R Jimenez v. Commissioner of Social Security Doc. 25 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 MARIO R. JIMENEZ, 10 11 12 13 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 14 15 Defendant. ) Case No. ED CV 09-2144 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 16 17 I. 18 INTRODUCTION AND SUMMARY 19 On December 1, 2009, plaintiff Mario R. Jimenez (“Plaintiff”) filed a 20 complaint against defendant Michael J. Astrue (“Defendant” or “Commissioner”), 21 the Commissioner of the Social Security Administration, seeking review of a denial 22 of an application for supplemental security income. [Docket No. 4.] On February 19, 2010, Defendant filed his answer, along with a certified copy 23 24 of the administrative record. [Docket Nos. 13, 15.] On April 14, 2010, this matter was transferred to the calendar of the 25 26 undersigned Magistrate Judge. [Docket No. 20.] Both Plaintiff and Defendant 27 subsequently consented to proceed for all purposes before the Magistrate Judge 28 pursuant to 28 U.S.C. § 636(c). [Docket Nos. 21, 22.] Dockets.Justia.com 1 Pursuant to a December 2, 2009 order regarding further proceedings, Plaintiff 2 submitted a brief in support of his complaint (“Plaintiff’s Brief”) on March 17, 2010. 3 [Docket No. 18.] On April 15, 2010, Defendant submitted his opposition brief 4 (“Defendant’s Brief”). [Docket No. 19.] The Court deems the matter suitable for 5 adjudication without oral argument. 6 In sum, having carefully studied, inter alia, the parties’ written submissions 7 and the administrative record, the Court concludes that, as detailed below, the 8 Administrative Law Judge (“ALJ”) erred in evaluating the opinion of Plaintiff’s 9 examining physician. The ALJ improperly substituted his own medical 10 interpretation in place of the examining orthopedic surgeon. Thus, the Court 11 remands this matter to the Commissioner in accordance with the principles and 12 instructions enunciated in this Memorandum Opinion and Order. 13 II. 14 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND 15 Plaintiff has a masters degree in electronics and was 59 years old on the date 16 of his administrative hearing. (See Administrative Record (“AR”) at 22, 25, 69.) 17 Plaintiff has no past relevant work. (Id. at 20.) 18 On December 19, 2006, over three years ago, Plaintiff filed for supplemental 19 security income (“SSI”), alleging that he has been disabled since November 1, 1989 20 due to high blood pressure, cancer, diabetes, hypertension, arthritis, and depression, 21 anxiety and panic attacks. (See AR at 39, 46, 69-72.) Plaintiff’s application was 22 denied initially and on reconsideration. (Id. at 39-43, 44, 46-50.) 23 On March 27, 2009, Plaintiff, represented by counsel, appeared and testified 24 at a hearing before an ALJ. (AR at 22, 24-36.) 25 On June 9, 2009, the ALJ denied Plaintiff’s request for benefits. (AR at 13- 26 21.) Applying the five-step sequential evaluation process – which is discussed 27 below – the ALJ found, at step one, that Plaintiff has not engaged in substantial 28 gainful activity since his SSI application date. (Id. at 15.) At step two, the ALJ 2 1 found that Plaintiff suffers from severe impairments consisting of “an impairment 2 involving the musculoskeletal system, insulin-dependent diabetes mellitus and 3 obesity[]” and “mental impairment from a mood disorder[.]” (Id. (emphasis 4 omitted).) 5 At step three, the ALJ determined that the evidence does not demonstrate that 6 Plaintiff’s impairment, either individually or in combination, meet or medically 7 equal the severity of any listing set forth in the Social Security regulations.1/ (AR at 8 15.) The ALJ then assessed Plaintiff’s residual functional capacity2/ (“RFC”) and 9 10 determined that he can perform “medium work . . . except postural limitations (i.e., 11 climbing ramps/stairs/ladders/ropes/scaffolds, balancing, stooping, kneeling, 12 crouching and crawling) could be done on a frequent basis.” (AR at 16 (emphasis 13 omitted).) The ALJ also stated that “[m]entally, he can perform unskilled entry 14 level (SVP 2), object-oriented work.” (Id. (emphasis omitted).) The ALJ found, at step four, that Plaintiff has no past relevant work. (AR at 15 16 20.) At step five, based on Plaintiff’s vocational factors, the ALJ found that “there 17 18 are jobs that exist in significant numbers in the national economy that [Plaintiff] can 19 perform.” (AR at 20 (emphasis omitted).) Thus, the ALJ concluded that Plaintiff 20 was not suffering from a disability as defined by the Act. (Id. at 13, 21.) Plaintiff filed a timely request for review of the ALJ’s decision, which was 21 22 23 24 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s 27 residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 denied by the Appeals Council. (AR at 5-7, 9.) The ALJ’s decision stands as the 2 final decision of the Commissioner. 3 III. 4 APPLICABLE LEGAL STANDARDS 5 A. Five-Step Inquiry to Ascertain a Cognizable Disability 6 A claimant must satisfy three fundamental elements to be eligible for 7 disability benefits: (1) a medically-determinable impairment; (2) the impairment 8 prevents the claimant from engaging in substantial gainful activity; and (3) the 9 impairment is expected to result in death or to last for a continuous period of at least 10 12 months. 42 U.S.C. § 423(d)(1)(A); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th 11 Cir. 1999). A well-established five-step sequential inquiry is utilized to assess 12 whether a particular claimant satisfies these three elements. The inquiry proceeds as 13 follows: 14 First, is the claimant engaging in substantial gainful activity? If so, the 15 claimant cannot be considered disabled. 16 Second, does the claimant suffer from a “severe” impairment, to wit, one 17 continuously lasting at least 12 months? If not, the claimant is not disabled. 18 Third, does the claimant’s impairment or combination of impairments meet or 19 equal an impairment specifically identified as a disability by the Commissioner 20 under 20 C.F.R. part 404, subpart P, appendix 1? If so, the claimant is automatically 21 determined to be disabled. 22 Fourth, is the claimant capable of performing his past work? If so, the 23 claimant is not disabled. 24 Fifth, does the claimant have the so-called “residual functional capacity” to 25 perform some other type of work? The critical question posed here is whether the 26 claimant can, in light of the impairment and his or her age, education and work 27 experience, adjust to another form of gainful employment? 28 If a claimant is found “disabled” or “not disabled” along any of these steps, 4 1 there is no need to complete the remaining inquiry. 20 C.F.R. §§ 404.1520(a)(4) & 2 416.920(a)(4); Tackett, 180 F.3d at 1098-99. 3 B. Standard of Review on Appeal 4 This Court is empowered to review decisions by the Commissioner to deny 5 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 6 Administration must be upheld if they are free of legal error and supported by 7 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 8 amended Dec. 21, 2001). If the court, however, determines that the ALJ’s findings 9 are based on legal error or are not supported by substantial evidence in the record, 10 the court may reject the findings and set aside the decision to deny benefits. 11 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 12 242 F.3d 1144, 1147 (9th Cir. 2001). 13 “Substantial evidence is more than a mere scintilla, but less than a 14 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such “relevant 15 evidence which a reasonable person might accept as adequate to support a 16 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 17 at 459. To determine whether substantial evidence supports the ALJ’s finding, the 18 reviewing court must review the administrative record as a whole, “weighing both 19 the evidence that supports and the evidence that detracts from the ALJ’s 20 conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be affirmed 21 simply by isolating a specific quantum of supporting evidence.’” Aukland, 257 F.3d 22 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 23 evidence can reasonably support either affirming or reversing the ALJ’s decision, 24 the reviewing court “‘may not substitute its judgment for that of the ALJ.’” Id. 25 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 26 /// 27 /// 28 /// 5 1 IV. 2 ISSUES PRESENTED 3 Two disputed issues are presented for decision here: 4 1. whether the ALJ improperly evaluated the medical evidence with 5 respect to Plaintiff’s physical and mental limitations, (see Pl.’s Br. at 2-7); and 6 2. whether the ALJ erred in his RFC finding. (Id. at 7-9.) 7 Under the circumstances here, the Court finds the issue of the ALJ’s 8 evaluation of the medical evidence with respect to Plaintiff’s physical limitations to 9 be dispositive of this matter, and does not reach the remaining issue. 10 V. 11 DISCUSSION AND ANALYSIS Plaintiff contends that the ALJ improperly disregarded Plaintiff’s “chronic 12 13 back pain.” (Pl.’s Br. at 3.) Plaintiff argues that the ALJ ignored a “report that 14 Plaintiff’s range of motion for the cervical and thoracolumbar spine are below 15 normal.” (Id. at 4.)3/ 16 17 3/ With respect to Plaintiff’s physical limitations, Plaintiff also asserts that the 18 ALJ failed to take into account an “instruction by his doctor to avoid bending, heavy 19 lifting, prolonged sitting and activities which make the problem worse.” (Pl.’s Br. at 3.) Plaintiff’s counsel explains that counsel’s notes summarizing the instruction 20 were mistakenly included as the first page of the instruction and the ALJ erred in 21 disregarding the instructions because counsel’s notes were “not signed by anyone.” 22 (Id. at 4.) Defendant maintains that the ALJ’s confusion regarding the instructions were 23 “at most, harmless error because the ALJ also explained that other objective medical 24 evidence contradicted these prophylactic instructions,” which were “pre-printed standardized instructions.” (Def.’s Br. at 3.) 25 In light of the Court’s decision, the Court need not reach this issue. However, 26 the Court notes that the instructions, (see AR at 315-16), appear to be a generic printout directed at all patients suffering from general back pain. The instructions 27 were attached to treatment notes from an emergency room visit made by Plaintiff. 28 (See id. at 314-17.) Contrary to Plaintiff’s assertion, the instructions do not appear 6 1 Defendant counters that “in spite of this finding, [the examining doctor] 2 concluded that Plaintiff was capable of frequent use of his upper extremities” and 3 “the ALJ noted, ‘there has been decreased range of motion and generalized 4 arthralgias and myalgias but no neurological deficits.’” (Def.’s Br. at 4.) Defendant 5 also maintains that “the ALJ is responsible for determining credibility and resolving 6 conflicts in medical testimony.” (Id. (internal quotation marks and citation 7 omitted).) 8 9 10 A. ALJ Must Provide Specific and Legitimate Reasons Supported by Substantial Evidence to Reject an Examining Physician’s Opinion In evaluating medical opinions, Ninth Circuit case law and Social Security 11 regulations “distinguish among the opinions of three types of physicians: (1) those 12 who treat the claimant (treating physicians); (2) those who examine but do not treat 13 the claimant (examining physicians); and (3) those who neither examine nor treat the 14 claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 15 1995, as amended April 9, 1996); see also 20 C.F.R. §§ 404.1527(d) & 416.927(d) 16 (prescribing the respective weight to be given the opinion of treating sources and 17 examining sources). “As a general rule, more weight should be given to the opinion 18 of a treating source than to the opinion of doctors who do not treat the claimant.” 19 Lester, 81 F.3d at 830; accord Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 20 1036 (9th Cir. 2003). This is so because a treating physician “is employed to cure 21 and has a greater opportunity to know and observe the patient as an individual.” 22 Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). 23 “The opinion of an examining physician is, in turn, entitled to greater weight 24 than the opinion of a nonexamining physician.” Lester, 81 F.3d at 830; see also 20 25 C.F.R. §§ 404.1527(d)(1)-(2) & 416.927(d)(1)-(2). If the opinion of an examining 26 physician is rejected in favor of the opinion of a nonexamining physician, the ALJ 27 28 to represent the treating physician’s opinion of Plaintiff’s specific limitations. 7 1 may do so only by providing specific and legitimate reasons. Lester, 81 F.3d at 8302 31. The ALJ can meet the requisite specific and legitimate standard “by setting out a 3 detailed and thorough summary of the facts and conflicting clinical evidence, stating 4 his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 5 747, 751 (9th Cir. 1989) (internal quotation marks and citation omitted). 6 B. Examining Physician’s Opinion 7 Here, on February 17, 2007, examining orthopedic surgeon Warren David Yu, 8 M.D. (“Dr. Yu”) completed an orthopedic evaluation of Plaintiff. (AR at 102-05.) 9 Dr. Yu reported that Plaintiff “had a fall in 1989 from a second-story rooftop” and 10 suffers from “generalized arthritis that affects all of his joints.” (Id. at 102.) Upon examination, Dr. Yu found that the “range of motion” in Plaintiff’s 11 12 “cervical spine” with respect to flexion, extension, right rotation, left rotation, right 13 bending and left bending were all below “normal.” (AR at 103.) Dr. Yu also 14 indicated that the “range of motion” in Plaintiff’s “thoracolumbar”4/ with respect to 15 flexion, extension, right bending, and left bending were also below “normal.” (Id.) 16 Dr. Yu stated that “[e]xamination reveals generalized arthralgias and myalgias 17 throughout with mild guarding.”5/ (Id.) Dr. Yu found that Plaintiff’s range of 18 motion of the upper and lower extremities were “within normal limits,” but 19 determined that “[e]xamination reveals generalized arthralgias and myalgias 20 throughout.” (Id. at 104.) In making a functional assessment of Plaintiff, Dr. Yu concluded that “the 21 22 patient should be able to walk without an assistive device[,] . . . should be able to sit, 23 stand or walk for up to six hours in an eight-hour day[,] . . . should occasionally be 24 25 4/ Thoracolumbar is defined as “[r]elating to the thoracic and lumbar portions of 26 the vertebral column.” Stedman’s Medical Dictionary 1982 (28th ed. 2006). 27 5/ Arthralgia is “[p]ain in a joint.” Stedman’s Medical Dictionary at 159. 28 Myalgia is “[m]uscular pain.” Id. at 1265. 8 1 allowed to pick up 20 pounds and frequently 10 pounds[, and] . . . should have 2 frequent use of the upper extremities for pushing, pulling, fine finger motor 3 movements, handling and fingering.” (AR at 105.) In other words, Dr. Yu limited 4 Plaintiff to “light work.” See 20 C.F.R. § 416.967(b) (“Light work involves lifting 5 no more than 20 pounds at a time with frequent lifting or carrying of objects 6 weighing up to 10 pounds.”). 7 C. The ALJ’s Analysis of Dr. Yu’s Opinion 8 The ALJ rejected Dr. Yu’s orthopedic evaluation, finding that it was 9 “completely inconsistent with the examiner’s actual physical examination findings”: 10 [Plaintiff] underwent an orthopedic consultative evaluation on 11 February 17, 2007. The reduction to light work assessed by the 12 consultative examiner . . . is rejected as completely inconsistent 13 with the examiner’s actual physical examination findings. For 14 example, gait was normal, range of motion in the lower 15 extremities was normal, straight leg raising was negative, motor 16 strength was 5-/5 throughout (even with poor effort) and there 17 were no reflex or sensory deficits. There was also no effusion in 18 the lower extremities. 19 (AR at 17 (citation omitted).) 20 D. The ALJ Improperly Evaluated Dr. Yu’s Opinion 21 Having carefully reviewed the record and the parties’ written submissions, the 22 Court is persuaded that the sole reason provided by the ALJ for rejecting Dr. Yu’s 23 opinion is not supported by substantial evidence. Three reasons govern this 24 determination. 25 First, the ALJ’s characterization of Dr. Yu’s opinion as “completely 26 inconsistent with the examiner’s actual physical examination findings” is not 27 supported by the record. (AR at 17 (emphasis added).) Dr. Yu found that Plaintiff 28 “should occasionally be allowed to pick up 20 pounds and frequently 10 pounds.” 9 1 (Id. at 105.) The Court does not find this limitation is “completely inconsistent” 2 with Dr. Yu’s evaluation given his determination that Plaintiff’s cervical spine and 3 thoracolumbar range of motion were below “normal.” (See id. at 103.) 4 Second, the ALJ’s summary of Dr. Yu’s evaluation, specifically that 5 Plaintiff’s “gait was normal, range of motion in the lower extremities was normal, 6 straight leg raising was negative, motor strength was 5-/5 throughout (even with 7 poor effort) and there were no reflex or sensory deficits[, and] . . . no effusion in the 8 lower extremities,” fails to acknowledge Dr. Yu’s findings regarding Plaintiff’s 9 cervical spine and back. Thus, the ALJ’s paraphrasing of Dr. Yu’s report is not 10 entirely accurate. See Reddick, 157 F.3d at 722-23 (“[T]he ALJ developed his 11 evidentiary basis by not fully accounting for the context of materials or all parts of 12 the testimony and reports. His paraphrasing of record material is not entirely 13 accurate regarding the content or tone of the record.”); see also Holohan v. 14 Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“[The treating physician’s] 15 statements must be read in context of the overall diagnostic picture he draws. That a 16 person who suffers from severe panic attacks, anxiety, and depression makes some 17 improvement does not mean that the person’s impairments no longer seriously affect 18 her ability to function in a workplace.”). 19 Defendant asserts that “Plaintiff was capable of frequent use of his upper 20 extremities” and “there has been decreased range of motion with generalized 21 arthralgias and myalgias but no neurological deficits.” (Def.’s Br. at 4 (internal 22 quotation marks omitted).) However, the ALJ did not rely on this reason in rejecting 23 Dr. Yu’s opinion. The Court’s review is limited to the reasons actually provided by 24 the ALJ in his decision. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“We 25 review only the reasons provided by the ALJ in the disability determination and may 26 not affirm the ALJ on a ground upon which he did not rely.”); Connett v. Barnhart, 27 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the reasons the 28 ALJ asserts[ and i]t was error for the district court to affirm the ALJ’s . . . decision 10 1 based on evidence that the ALJ did not discuss.”) (citing SEC v. Chenery Corp., 332 2 U.S. 194, 196 (1947)). 3 In any event, the fact that Dr. Yu found Plaintiff “capable of frequent use of 4 his upper extremities” does not preclude Dr. Yu from restricting Plaintiff’s ability to 5 carry heavy items based on Plaintiff’s back and cervical spine impairments. 6 Third, Dr. Yu’s findings regarding Plaintiff’s cervical spine are, in fact, 7 supported by the record. For example, treatment notes indicate that Plaintiff suffers 8 from chronic back pain. (See, e.g., AR at 225 (emergency room treatment note dated 9 August 7, 2005 indicating Plaintiff suffers from chronic back pain), 267 (diagnostic 10 imaging results from examination conducted for “chronic low back pain” concluding 11 that “[t]here is slight loss of usual lordosis”6/ and “may be mild facet sclerosis”7/), 12 313 (emergency room treatment note dated May 24, 2007 indicating Plaintiff suffers 13 from chronic back pain).) In short, it appears that the ALJ has, in effect, improperly substituted his own 14 15 interpretation of the evidence without setting forth sufficient authority or medical 16 evidence to support his interpretation. See Tackett, 180 F.3d at 1102-03 (ALJ may 17 not substitute his own interpretation of the medical evidence for the opinion of 18 medical professionals); Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000, as 19 amended Dec. 13, 2000) (“[A]n ALJ must not substitute his own judgment for a 20 physician’s opinion without relying on other medical evidence or authority in the 21 record.”); Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006) (“An ALJ 22 cannot arbitrarily substitute his own judgment for competent medical opinion, and 23 24 6/ Lordosis is an “anteriorly convex curvature of the vertebral column; the 25 normal lordoses of the cervical and lumbar regions are secondary curvatures of the vertebral column, acquired postnatally.” Stedman’s Medical Dictionary at 1119. 26 7/ “In neuropathy, [sclerosis is] induration of nervous and other structures by a 27 hyperplasia of the interstitial fibrous or glial connective tissue.” Stedman’s Medical 28 Dictionary at 1733. 11 1 he must not succumb to the temptation to play doctor and make his own independent 2 medical findings.”) (internal quotation marks, alterations and citations omitted). 3 4 VI. 5 REMAND IS APPROPRIATE This Court has discretion to remand or reverse and award benefits. McAllister 6 7 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no 8 useful purpose would be served by further proceedings, or where the record has been 9 fully developed, it is appropriate to exercise this discretion to direct an immediate 10 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 11 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), 12 cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be 13 resolved before a determination can be made, and it is not clear from the record that 14 the ALJ would be required to find plaintiff disabled if all the evidence were properly 15 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 16 F.3d at 1179-80. Here, remand is required because the ALJ erred in failing to properly evaluate 17 18 Dr. Yu’s opinion.8/ On remand, the ALJ shall reevaluate Dr. Yu’s opinion and either 19 credit it as true, or provide specific and legitimate reasons for any portion of his 20 opinion that is rejected. The ALJ shall also reassess the medical opinions in the 21 record and provide sufficient reasons under the applicable legal standards for 22 rejecting any portion of the medical opinions. The ALJ shall reassess Plaintiff’s 23 RFC and proceed through steps four and five to determine what work, if any, 24 Plaintiff is capable of performing. Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 25 26 27 8/ In light of the Court’s remand instructions, it is unnecessary for the Court to 28 address Plaintiff’s remaining contentions. (See Pl.’s Br. at 5-9.) 12 1 REVERSING the decision of the Commissioner denying benefits and 2 REMANDING the matter for further administrative action consistent with this 3 decision. 4 5 Dated: October 12, 2010 6 ___________________________ Hon. Jay C. Gandhi United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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