David Caswell v. Michael J Astrue, No. 5:2011cv00513 - Document 15 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh: For the reasons set forth above, the Agency's decision is reversed and the case is remanded for further proceedings consistent with this opinion. **PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS** (ca)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DAVID CASWELL, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 11-513-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration ( the Agency ), denying his application for 20 Supplemental Security Income ( SSI ) and Disability Insurance benefits 21 ( DIB ). 22 when he: (1) failed to properly consider the doctors opinions; and 23 (2) concluded that Plaintiff was not credible. 24 discussed below, the Court finds that the ALJ erred in addressing the 25 medical evidence but did not err in his credibility finding. 26 the Agency s decision is reversed and the case is remanded for further 27 proceedings consistent with this opinion. 28 He claims that the Administrative Law Judge ( ALJ ) erred For the reasons As such, 1 II. 2 SUMMARY OF PROCEEDINGS In October 2008, Plaintiff applied for SSI and DIB, alleging that 3 he was disabled as of 1998. 4 His application was denied initially and on reconsideration. 5 52, 56-60.) 6 ALJ. 7 June 25, 2010, the ALJ issued a decision denying benefits. 8 Plaintiff appealed the ALJ s decision but the Appeals Council denied 9 review. (AR 1-5.) 12 (AR 22-42.) On (AR 9-16.) This appeal followed. III. A. (AR 48- He then requested and was granted a hearing before an On March 5, 2010, he appeared for the hearing. 10 11 (Administrative Record ( AR ) 106-14.) ANALYSIS The ALJ s Findings Regarding The Doctors Opinions Plaintiff suffers from thoracic outlet syndrome, myofascial pain 13 syndrome, and spondylosis of the spine. 14 Hesseltine, a board certified anesthesiologist who specializes in pain 15 management, treated Plaintiff from 2006 to 2009. 16 According to Dr. Hesseltine, Plaintiff is incapable of performing a 17 full range of work due to his conditions and the pain caused by them. 18 (AR 262-64.) 19 opinion of a non-treating, non-examining physician G. Taylor Holmes. 20 (AR 14.) 21 following reasons, the Court agrees. 22 (AR 12.) Dr. Andrew (AR 207-46.) The ALJ rejected this opinion and accepted, instead, the Plaintiff alleges that the ALJ erred in doing so. For the Generally speaking, as a treating physician, Dr. Hesseltine s 23 opinion was entitled to deference. Orn v. Astrue, 495 F.3d 625, 631 24 (9th Cir. 2007); see also Morgan v. Comm r, 169 F.3d 595, 600 (9th 25 Cir. 1999) (explaining treating physician s opinion is given 26 deference because he is employed to cure and has a greater 27 opportunity to know and observe the patient as an individual. ) 28 (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 2 1 Thus, all things being equal, Dr. Hesseltine s opinion regarding 2 Plaintiff s capacity to work should have been given controlling 3 weight. 4 Cir. 1988). 5 simply accept Dr. Hesseltine s opinion and, where, as here, it was 6 contradicted by Dr. Holmes s opinion, the ALJ was empowered to reject 7 it for specific and legitimate reasons supported by substantial 8 evidence in the record. 9 (9th Cir. 2002) (quoting Magallanes v. Bowen 881 F.2d 747, 751 (9th 10 11 Orn, 495 F.3d at 631; Embrey v. Bowen, 849 F.2d 418, 421 (9th That being said, however, the ALJ was not required to See Thomas v. Barnhart, 278 F.3d 947, 957 Cir. 1989)); Morgan, 169 F.3d at 600. The ALJ rejected Dr. Hesseltine s opinion because: (1) there was 12 no evidence that he performed a thorough physical examination; (2) the 13 treatment regimen he employed consisted of only steroid injections and 14 pain medication; (3) the record does not contain objective findings 15 that support Dr. Hesseltine s extreme limitations; and (4) Dr. 16 Hesseltine s limitations are not consistent with the tone of his 17 treatment notes, showing Plaintiff doing well and able to work with 18 pain management. 19 persuasive. 20 (AR 14.) The Court does not find these reasons The notes from Dr. Hesseltine s many visits suggest that he 21 performed a physical examination each time he saw Plaintiff. 22 many of the notes documenting the exams set forth that the results of 23 the exams were unchanged from previous [exams], (AR 221, 223, 224, 24 227, 228, 230, 231, 232, 233, 234, 235, 236, 237, 240, 242, 243, 244, 25 245, 246), they clearly suggest that Dr. Hesseltine performed a 26 physical exam each time he saw Plaintiff. 27 ignore the exams when the doctor merely noted that Plaintiff s 28 condition was unchanged, there are still numerous other times when the 3 Though Even were the Court to 1 doctor recorded the specific results of the exams. 2 213, 214, 216, 218, and 220.) 3 (AR 207, 209, 211, As to the ALJ s finding that the exams were not thorough, the 4 Court is not clear as to what the ALJ meant. 5 in his decision as to what was lacking. 6 not reveal what the doctor failed to do. 7 any standard norms required for an examination to be deemed 8 thorough. 9 rejecting Dr. Hesseltine s opinion is not supported by the record. 10 There is no explanation And a review of the file does Nor is the Court aware of As such, the Court finds that the ALJ s first reason for The ALJ s second reason for rejecting Dr. Hesseltine s opinion 11 was that the treatment regimen he prescribed, which consisted of 12 steroid injections and pain medications, undercut the doctor s opinion 13 that Plaintiff s condition was so serious. 14 evidence before the Court that more aggressive measures were available 15 and would have been used had Plaintiff really suffered from the level 16 of pain that he claimed. 17 Dr. Holmes, the reviewing physician. 18 undergone surgery to remove one of his extra ribs and could have 19 undergone a similar procedure to remove the other one. 20 He testified, however, that he did not have the second surgery because 21 his doctor told him it would be risky and because he did not have 22 insurance and could not afford it. 23 Plaintiff s testimony about this surgery amounted to medical evidence 24 that surgery was a viable treatment option, Plaintiff explained why he 25 elected not to undergo it and his explanation is not contradicted in 26 the record. 27 Hesseltine s opinion. (AR 14.) But there is no Dr. Hesseltine did not mention any. Nor did According to Plaintiff, he had (AR 28-29.) (AR 24-29.) Assuming that Thus, this is not a valid reason for rejecting Dr. 28 4 1 The third reason cited by the ALJ for rejecting Dr. Hesseltine s 2 opinion was that the record did not contain any objective findings 3 that would support the extreme limitations found by Dr. Hesseltine. 4 (AR 14.) 5 explain what objective evidence is missing. 6 F.2d at 421 ( To say that medical opinions are not supported by 7 sufficient objective findings or are contrary to the preponderant 8 conclusions mandated by the objective findings does not achieve the 9 level of specificity our prior cases have required, even when the The problem with the ALJ s reasoning here is that he did not See, e.g., Embrey, 849 10 objective factors are listed seriatim. ). Plaintiff was born with 11 extra ribs. 12 presumably, the x-rays showed that he still has an extra one on his 13 left side. 14 caused by it with fairly strong pain medication. 15 at a loss to understand what objective medical evidence of Plaintiff s 16 condition is missing. He had surgery to remove the one on his right side and, For years, his doctor treated this condition and the pain Thus, the Court is 17 Perhaps what the ALJ was referring to was the objective evidence 18 that Plaintiff was not as incapacitated as he claimed, i.e., the fact 19 that for ten years after he allegedly became disabled he was still 20 working as a laborer installing sprinkler systems. 21 During this period, Plaintiff worked ten hour days and occasionally 22 lifted more than 100 pounds at a time, frequently lifting more than 50 23 pounds. 24 examinations, Plaintiff regularly tested 5/5 on all four limbs. 25 211, 214, 225.) 26 reporting pain at an 8 or 10 out of 10. 27 the end, the Court concludes that Dr. Hesseltine s opinion regarding 28 Plaintiff s limitations is undermined by the objective evidence before (AR 146.) (AR 23, 145.) When Dr. Hesseltine tested his strength during (AR During this same time frame, however, Plaintiff was 5 (AR 209, 211, 213.) In 1 the doctor that, despite reporting extreme levels of pain, Plaintiff 2 was performing heavy work and the doctor knew it. 3 221.) 4 (AR 209, 211, 213, The doctor s opinion is further called into question by the fact 5 that, the last time he saw Plaintiff, in January 2009, Plaintiff 6 reported his pain was at a level 6, the lowest he had ever reported 7 it. 8 the form documenting his opinion, he concluded, essentially, that 9 Plaintiff did not have the capacity to perform any work. (AR 207.) Yet, six months later, when Dr. Hesseltine filled out This makes 10 no sense. 11 experiencing pain at a level 10, there is no reason why he could not 12 perform any work when he was experiencing pain at a level 6. 13 Presumably, this is what the ALJ was referring to when he concluded 14 that the tone of Dr. Hesseltine s notes were inconsistent with the 15 conclusion that Plaintiff was incapacitated, the ALJ s fourth reason 16 for discounting Dr. Hesseltine s opinion. 17 If Plaintiff could perform heavy work when he was Rather than rely on Dr. Hesseltine s opinion, the ALJ relied on 18 the opinion of the non-treating, non-examining consulting doctor G. 19 Taylor Holmes. 20 Dr. Hesseltine s records and, based on them, concluded that Plaintiff 21 was not as disabled as he claimed to be or as Dr. Hesseltine had 22 found. 23 that Dr. Holmes did not review any records other than Dr. Hesseltine s 24 to reach this conclusion. 25 amounts to Dr. Holmes simply reaching a different conclusion than Dr. 26 Hesseltine based solely on Dr. Hesseltine s records, which is not 27 allowed. (AR 14.) (AR 197-203.) Dr. Holmes reviewed most, though not all, of What seems clear from the record, however, is (AR 202.) This is problematic because it See Orn, 495 F.3d at 631-32. 28 6 1 Ultimately, the Court finds that, though some of the objective 2 evidence did not fully support Dr. Hesseltine s opinion, that reason 3 alone is not enough to uphold the ALJ s decision to reject the 4 opinion. 5 error because it was premised solely on Dr. Hesseltine s records. 6 these reasons, the Court finds that the ALJ erred in addressing the 7 doctors opinions and that remand is necessary to allow him another 8 opportunity to do so. 9 B. 10 Further, the ALJ s reliance on Dr. Holmes s opinion was in For The Credibility Finding The ALJ found that Plaintiff was not entirely credible because: 11 (1) he performed heavy work for years after he allegedly became 12 disabled; (2) despite claims of an inability to move his arms above 13 his head without difficulty and pain, he was able to do so at the 14 administrative hearing without apparent pain or difficulty; (3) the 15 claim reviewer who met in person with Plaintiff did not observe any 16 physical limitations; and (4) the reviewing physician opined that 17 Plaintiff could function normally, which is consistent with the ALJ s 18 observations of Plaintiff at the hearing. 19 reasons explained below, the ALJ s credibility finding will be 20 affirmed. 21 (AR 13-14.) For the The ALJ found that Plaintiff s testimony that he could not work 22 because of pain was undermined by the fact that he had been able to 23 perform heavy work for ten years after the alleged onset of 24 disability. 25 the work indicate the claimant s functional capacity was greater than 26 he alleged. ); 14 (noting Plaintiff s earnings and his ability to do 27 heavy work seriously diminish[] [his] allegations concerning his 28 disability. ).) (AR 11-12 ( Both the earnings and the exertional level of This finding is supported by the record. 7 Plaintiff 1 claimed that he was disabled as of January 1998, but he worked 2 installing fire sprinkler systems for ten years after that date. 3 23.) 4 frequently lift more than 50 pounds. 5 (AR This job required him to lift more than 100 pounds at times and (AR 146.) It stands to reason that, if Plaintiff was performing heavy work 6 for ten years after the alleged onset date, he was not disabled during 7 that period and his testimony that he was not able to perform any 8 work, (AR 35), was not credible. 9 trying to conceal the fact that he worked after 1998. This is not because Plaintiff was He freely 10 admitted in his submissions to the Agency before the hearing and in 11 his testimony at the hearing that he had worked for this entire 12 period. 13 application to change his alleged onset date to a date after he 14 stopped working. 15 disabled as of 1998 in the face of evidence that he submitted that 16 showed that he was performing heavy work during this same period. 17 a word, Plaintiff s approach was schizophrenic. 18 err in questioning Plaintiff s testimony in light of the fact that he 19 was working during the same time that he alleged that he was disabled. 20 (AR 23, 145.) The problem is that he never amended his Thus, he was asking the ALJ to find that he was In And the ALJ did not Plaintiff seems to concede the error in his approach and tries, 21 it appears, to amend his application in this court: [Plaintiff] 22 disputes the ALJ s findings of non-disability for the period of 23 September 2008 forward. 24 place to amend the application. 25 Agency. 26 This Court is charged with reviewing the correctness of the ALJ s 27 decision as it was presented to the ALJ. 28 Plaintiff claimed that he was disabled as of January 1, 1998, and (Joint Stip. at 4.) This is not the time or That should have been done before the Had Plaintiff done so, the result might have been different. 8 As is clear from the record, 1 presented evidence that he was not disabled during most of this 2 period. 3 him from recovering benefits through most of the period from January 4 1998 through December 2006 (AR 11), he was still left to grapple with 5 the issue of whether Plaintiff was disabled after that date in light 6 of the fact that Plaintiff was able to install sprinkler systems for 7 21 more months (from January 2007 to September 2008). 8 ultimate conclusion that Plaintiff was not credible in claiming that 9 he could not perform work was a reasonable one. 10 Though the ALJ recognized that Plaintiff s employment barred The ALJ s The ALJ cited several other reasons for questioning Plaintiff s 11 testimony. He pointed out that the reviewing physician concluded that 12 Plaintiff could function normally, which was consistent with the ALJ s 13 observations. 14 treatment of the doctors opinions, this reason does not appear to 15 still be valid. 16 able to raise his arms above his head when gesturing during the 17 hearing and that the claim reviewer did not observe any physical 18 limitations are questionable bases for credibility findings. 19 e.g., Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985) 20 (criticizing sit and squirm jurisprudence ). 21 however, that Plaintiff s treating physician reported in September 22 2008 that Plaintiff could move his arms and legs without difficulty, 23 (AR 13-14, 209), which is obviously a valid reason for questioning 24 Plaintiff s claim that he could not. 25 the ALJ s credibility finding based on the fact that Plaintiff s 26 testimony that he could not perform even sedentary work was undermined 27 by the fact that for most of the period of alleged disability he could 28 and did perform heavy work. In light of the Court s ruling regarding the ALJ s Further, the ALJ s observation that Plaintiff was See, The ALJ also noted, In the end, the Court affirms This finding is further supported by the 9 1 fact that, contrary to his claim that he could not move his arms above 2 his head, he could. 3 IV. CONCLUSION 4 For the reasons set forth above, the Agency s decision is 5 reversed and the case is remanded for further proceedings consistent 6 with this opinion.1 7 IT IS SO ORDERED. 8 DATED: June 19, 2012. 9 10 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 S:\PJW\Cases-Soc Sec\CASWELL, 513\memo.opinion and ord.wpd 25 26 27 28 1 The Court has considered Plaintiff s request that the case be remanded for an award of benefits. That request is denied. It is not clear from this record that Plaintiff is entitled to benefits and further proceedings are necessary to resolve that issue. 10

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