Ofelia J Alarcon v. Michael J Astrue, No. 5:2011cv00061 - Document 18 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 OFELIA J. ALARCON, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 11-00061 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff Ofelia J. Alarcon contends that the Social Security Commissioner 18 wrongly denied her claim for disability benefits. Plaintiff argues that the Administrative 19 Law Judge ( ALJ ) erred in determining that she did not have the severe impairment of 20 carpal tunnel syndrome and in evaluating the opinion of an examining physician. The 21 Court agrees, as explained below. 22 Plaintiff first argues that the ALJ should have found that she suffered from the 23 severe impairment of carpal tunnel syndrome. The regulations do not define a severe 24 impairment. Instead, they state what a non-severe impairment is: one that does not 25 significantly limit physical or mental ability to do basic work activities, which are the 26 abilities and aptitudes necessary to do most jobs. 20 C.F.R. §§ 404.1521, 416.921. The 27 requirement of having a severe impairment serves a gatekeeping function, screening out 28 frivolous complaints. Bowen v. Yuckert, 482 U.S. 137, 153 (1987). The courts have 1 approved the Administration s practice of assessing an impairment as non-severe if it has 2 no more than a minimal effect on the individual s ability to do basic work functions. 3 Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988); Smolen v. Chater, 80 F.3d 1273, 4 1290 (9th Cir. 1996); Social Security Ruling 85-28. Thus, the requirement that a claimant 5 have a severe impairment has been transmogrified into a requirement that the claimant have 6 an impairment that is not very severe at all it simply must have more than a minimal 7 effect on his or her ability to do basic work functions. When the Commissioner rests his 8 decision on the failure to satisfy the severity requirement, that decision, as with any other, 9 must rest on substantial evidence within the record. Smolen, 80 F.3d at 1289-90. 10 In this case, Plaintiff was diagnosed with carpal tunnel syndrome by her 11 treating physician, Dr. Garcia (AR 275), and with likely carpal tunnel syndrome by an 12 examining physician, Dr. Nguyen. (AR 235.) Plaintiff testified that she has constant pain 13 in both hands; it is worse in her right (dominant) hand and exacerbated by movement, 14 grasping and gripping ; and that she takes medication for the pain but may require surgery. 15 (AR 51-52.) She told Dr. Garcia that she has trouble holding things (AR 275), and 16 Dr. Nguyen assessed her as having limitations in performing fine motor movements with 17 her right hand, among other things. (AR 236.) 18 The ALJ provided two reasons for rejecting the diagnosis of carpal tunnel 19 syndrome. Neither is legitimate. First, the ALJ stated that the diagnosis was speculative 20 in the absence of any electrodiagnostic studies. (AR 34.) But there is no evidence of 21 record that such studies are necessary to establish a diagnosis of carpal tunnel syndrome, 22 and the Commissioner did not respond to Plaintiff s argument that electrodiagnostic 23 studies are not necessarily required to reach the diagnosis. (Plaintiff s Memorandum in 24 Support of Complaint 10.) It is inappropriate for the ALJ to substitute his own medical 25 conclusions for those of an examining and treating physician. See Tackett v. Apfel, 180 26 F.3d 1094, 1102-03 (9th Cir. 1999). Next, the ALJ stated that [i]f [Plaintiff] has such a 27 diagnosis it has never been treated. (AR 34.) But the ALJ failed to mention Dr. Garcia s 28 diagnosis of carpal tunnel syndrome and prescription of Neurontin to treat it. (AR 275.) -2- 1 In sum, the medical evidence and Plaintiff s testimony establish that her carpal tunnel 2 syndrome qualifies as a severe impairment. 3 The Court cannot find the ALJ s error harmless. The ALJ himself stated that 4 the most that can be said about possible carpal tunnel syndrome is that repetitive forceful 5 grasping should be avoided. (AR 34.) But he did not include this limitation in his 6 assessment of Plaintiff s residual functional capacity (AR 31), and there is no evidence of 7 record demonstrating that Plaintiff could perform her past relevant work or other work with 8 this limitation. As the Court must confine its review to evidence in the administrative 9 record, 42 U.S.C. § 405(g), and must evaluate the agency s decision only on the grounds 10 articulated by the agency, Ceguerra v. Secretary, 933 F.2d 735, 739 (9th Cir. 1991), it 11 cannot accept the Commissioner s speculative argument that the ALJ s error was harmless. 12 (See Memorandum in Support of Defendant s Answer 6.) 13 Plaintiff s other argument is that the ALJ erred in rejecting the opinion of an 14 examining physician, Dr. Nguyen. As noted above, Dr. Nguyen diagnosed Plaintiff with 15 likely carpal tunnel syndrome and found that her ability to perform fine manipulation 16 was limited. Dr. Nguyen also opined that Plaintiff could perform only light work, and had 17 limitations in performing pushing, pulling, climbing, stooping, crouching, bending, and 18 working overhead. (AR 235-36.) In contrast, the ALJ found that Plaintiff could perform 19 the full range of medium work. (AR 31.) 20 The ALJ was required to provide specific and legitimate reasons for rejecting 21 Dr. Nguyen s opinion. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). The 22 ALJ s reasons do not meet this standard. First, the ALJ found that Dr. Nguyen s 23 assessment of Plaintiff s limitations was totally unsupported by his own physical 24 examination and by [Plaintiff s] treating records from Dr. Garcia. (AR 34.) But 25 Dr. Nguyen clearly explained how his findings supported his functional assessment. For 26 example, Plaintiff s restriction to light work was supported by limited range of motion in 27 [the] lumbar [spine] and weakness in [the] right wrist and numbness in [the] right hand but 28 normal neurologic exam and negative straight leg raising tests. (AR 235.) The same or -3- 1 similar factors accounted for Dr. Nguyen s assessment of pushing, pulling, and postural 2 limitations. (AR 236.) The ALJ s reasons for discounting some of Dr. Nguyen s findings 3 such as the ALJ s determination that Plaintiff s negative straight leg raising test result 4 was inconsistent with her range of motion in the spine, and his conclusion that the grip 5 figures are suspect with a 50% drop-off on the third test unaccounted for by any objectively 6 established pathology amount to an improper substitution of the ALJ s medical 7 judgment for that of a physician. See Tackett, 180 F.3d at 1102-03. The ALJ s reliance 8 on a non-examining State agency physician s opinion to bolster his rejection of 9 Dr. Nguyen s opinion also is not persuasive. Neither the ALJ nor the State agency 10 physician explained with any specificity why Dr. Nguyen s opinion was inconsistent with 11 the bulk of the evidence. The ALJ must do more than offer his conclusions. He must set 12 forth his own interpretations and explain why they, rather than the doctors , are correct. 13 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). Finally, as explained above, the 14 ALJ s rejection of Dr. Nguyen s diagnosis of likely carpal tunnel syndrome as unsupported 15 by the evidence was also improper. 16 In accordance with the foregoing, the decision is reversed. The matter is 17 remanded to the Commissioner, who shall assess the effects of Plaintiff s severe 18 impairment of carpal tunnel syndrom, properly evaluate Dr. Nguyen s opinion, and 19 otherwise proceed as appropriate. 20 IT IS SO ORDERED. 21 22 DATED: January 10, 2012 23 24 25 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 26 27 28 -4-
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