Sheryl A. Cummins v. Michael J. Astrue, No. 5:2010cv00450 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Sheryl A. Cummins (Cummins) filed this action on April 1, 2010. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on April 20 and Ma y 12, 2010. (Dkt. Nos. 8, 9.) On December 2, 2010, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court remands this matter to the Commissioner for proceedings consistent with this Opinion. IT IS HEREBY ORDERED that the decision of the Commissioner is remanded for proceedings consistent with this Opinion. (See Order for details.) (mp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SHERYL A. CUMMINS, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 10-450 AGR MEMORANDUM OPINION AND ORDER Sheryl A. Cummins ( Cummins ) filed this action on April 1, 2010. 18 19 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the 20 magistrate judge on April 20 and May 12, 2010. (Dkt. Nos. 8, 9.) On December 21 2, 2010, the parties filed a Joint Stipulation ( JS ) that addressed the disputed 22 issues. The Court has taken the matter under submission without oral argument. 23 Having reviewed the entire file, the Court remands this matter to the 24 Commissioner for proceedings consistent with this Opinion. 25 /// 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On November 6, 2006, Cummins filed an application for disability insurance 4 benefits alleging an onset date of October 21, 2005. Administrative Record 5 ( AR ) 110-12. The application was denied initially and upon reconsideration. AR 6 67-78. Cummins requested a hearing before an Administrative Law Judge 7 ( ALJ ). AR 80. On September 23, 2008, the ALJ conducted a hearing at which 8 Cummins and a vocational expert testified. AR 44-63. On November 4, 2008, 9 the ALJ issued a decision denying benefits. AR 16-28. On February 18, 2010, 10 the Appeals Council denied the request for review. AR 1-5. This action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 14 decision to deny benefits. The decision will be disturbed only if it is not supported 15 by substantial evidence, or if it is based upon the application of improper legal 16 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 17 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 Substantial evidence means more than a mere scintilla but less than a 19 preponderance it is such relevant evidence that a reasonable mind might 20 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 21 determining whether substantial evidence exists to support the Commissioner s 22 decision, the Court examines the administrative record as a whole, considering 23 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 24 evidence is susceptible to more than one rational interpretation, the Court must 25 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 26 /// 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 10 B. 11 The ALJ found that Cummins has the following severe impairments: 12 seizure disorder and status post rotator cuff repair. AR 21. Cummins has the 13 residual functional capacity ( RFC ) to perform a limited range of light exertion 14 with the following limitations: she can lift and carry 20 pounds occasionally and 10 15 pounds frequently with the right upper extremity; she can lift the same amount of 16 weight only occasionally with the left upper extremity; she can stand/walk for four 17 hours out of eight; she can sit without restriction; she cannot work at unprotected 18 heights or with dangerous machinery; she cannot perform fast paced work such 19 as work on a conveyor belt or piece work; and she cannot perform strenuous 20 pushing and pulling with the left upper extremity. AR 21-22. Cummins could 21 perform her past relevant work as a receptionist as it was actually and generally 22 performed. AR 26. The ALJ s Findings 23 C. 24 Cummins contends that the ALJ failed to properly consider treating 25 26 Consideration of Treating Physicians Opinions physician Dr. Gallegos opinion. JS 4-9. The ALJ s decision is dated November 4, 2008. AR 16. Dr. Gallegos 27 letter and records are contained in Exhibit 13F, which contains a transmittal letter 28 dated August 14, 2008. AR 304. Dr. Gallegos letter is dated August 7, 2008 and 3 1 his records cover the period February 28-August 4, 2008. AR 309-20. However, 2 the ALJ s discussion of treating records ends in 2007. AR 23-26. Nowhere does 3 the ALJ mention or address Exhibit 13F or Dr. Gallegos findings. It is unclear 4 whether the ALJ received the records or inadvertently overlooked them. 5 The Appeals Council s order indicates it received Exhibit 13F. AR 5. 6 However, the Appeals Council order does not reflect receipt of counsel s letter 7 dated July 7, 2009, which encloses an additional treating record dated March 9, 8 2009, from Loma Linda University Medical Center. AR 8-9. 9 An opinion of a treating physician is given more weight than the opinion of 10 non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To 11 reject an uncontradicted opinion of a treating physician, an ALJ must state clear 12 and convincing reasons that are supported by substantial evidence. Bayliss v. 13 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When a treating physician s 14 opinion is contradicted by another doctor, the ALJ may not reject this opinion 15 without providing specific and legitimate reasons supported by substantial 16 evidence in the record. This can be done by setting out a detailed and thorough 17 summary of the facts and conflicting clinical evidence, stating his interpretation 18 thereof, and making findings. Orn, 495 F.3d at 632 (citations and quotation 19 marks omitted). When there is conflicting medical evidence, the Secretary must 20 determine credibility and resolve the conflict. Thomas v. Barnhart, 278 F.3d 947, 21 956-57 (9th Cir. 2002) (citation and quotation marks omitted). 22 The Commissioner proffers reasons why Dr. Gallegos opinions may be 23 discounted or rejected. These reasons may not be considered. See Orn, 495 24 F.3d at 630 ( We review only the reasons provided by the ALJ in the disability 25 determination and may not affirm the ALJ on a ground upon which he did not 26 rely. ); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) ( We are 27 constrained to review the reasons the ALJ asserts [and i]t was error for the district 28 4 1 court to affirm the ALJ s . . . decision based on evidence that the ALJ did not 2 discuss. ). 3 On remand, the Commissioner should consider Dr. Gallegos letter and 4 treating records and, if appropriate, the subsequent treating records submitted to 5 the Appeals Council. 6 IV. 7 ORDER 8 9 10 11 IT IS HEREBY ORDERED that the decision of the Commissioner is remanded for proceedings consistent with this Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 12 13 14 DATED: August 4, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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