Sandra Rocha v. Michael J Astrue, No. 5:2012cv00264 - Document 18 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. Plaintiff's credibility will be evaluated de novo on remand. This matter will be remanded for further hearing pursuant to the instructions set forth in this Opinion. 1 [SEE ORDER FOR FURTHER DETAILS] (gr)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 SANDRA ROCHA, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 12-00264-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. The parties have filed the 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 considered the opinions of treating physicians Dr. Goldman, 2 Dr. Steiger and Dr. Tremazi; 3 2. Whether the ALJ provided a complete and accurate assessment 4 5 of Plaintiff s residual functional capacity; 3. Whether the ALJ poses complete hypothetical questions to the 6 7 vocational expert; and 4. Whether the ALJ s credibility determination is supported by 8 9 clear and convincing evidence. (JS at 2-3.) 10 11 This Memorandum Opinion will constitute the Court s findings of 12 fact and conclusions of law. After reviewing the matter, the Court 13 concludes 14 Commissioner must be reversed and the matter remanded. that for the reasons set forth, the decision of the 15 16 I 17 THE ALJ DID NOT PROPERLY CONSIDER THE OPINIONS OF 18 TREATING PHYSICIANS DRS. GOLDMAN, STEIGER AND TREMAZI 19 The ALJ determined that Plaintiff has severe musculoskeletal 20 impairments consisting of carpal tunnel syndrome, cervical spine 21 degenerative disc disease and impingement syndrome of the right 22 shoulder. (AR 12.) He assessed a Residual Functional Capacity ( RFC ) 23 to perform light work with postural limitations (climbing ramps/ 24 stairs, balancing, stooping, kneeling, crouching and crawling) on an 25 occasional basis; an inability to climb ladders, rugs or scaffolds; 26 and limitation of handling and fingering to frequently but not 27 continuously. (AR 13.) 28 As a result of an industrial 2 accident, Plaintiff received 1 treatment and was also examined in the Workers Compensation context. 2 On March 19, 2007, Plaintiff s primary treating physician, Scott 3 Goldman, M.D., a board certified orthopedic surgeon, reported that 4 Plaintiff has normal range of motion of the right wrist and digits of 5 the right hand, decreased sensation in the index and middle finger, 6 and 7 discrimination. 8 medical improvement as of March 19, 2007. (AR 204.) 9 assessed that in a work context she can do no fingering or gripping, has impairment cannot with regard to grasping and tactile It was indicated that she reached her maximum 10 and 11 extremity. 12 Examiner 13 Compensation context. 14 Dr. lift greater than ten pounds with the Dr. Goldman right upper Dr. Goldman prepared his report as a Qualified Medical ( QME ); Ralph thus, Steiger, the a report Diplomate was of written the in the American Workers Board of 15 Orthopedic Surgery, prepared a report on December 2, 2007. (AR 267- 16 272.) He diagnosed numerous musculoskeletal impairments. (AR 267- 17 270.) He assessed restrictions of no repetitive pushing, pulling, 18 reaching or lifting as well as no repetitive work at or above 19 shoulder level. 20 gripping, grasping or pinching and no keyboarding more than 50% of the 21 workday. 22 avoid any repetitive neck movement or prolonged fixed gaze in a 23 flexed or extended position, or any heavy lifting. 24 result of her lumbar spine injury, Dr. Steiger assessed that Plaintiff 25 is precluded from heavy lifting or repeated bending and stooping. 26 (AR 270.) Further, Plaintiff should avoid any repetitive Due to her cervical spine injury, he opined that she should Finally, as a 27 Plaintiff was treated by Dr. Tremazi, whose specialty appears to 28 be internal medicine and rheumatology (AR 350), between October 2, 3 1 2008 and March 11, 2009. Based on his examinations, Dr. Tremazi 2 completed a form in which he assessed that Plaintiff could only 3 occasionally twist, stoop, crouch, climb stairs, and could never climb 4 ladders. 5 impairment: 6 manipulation); fingering (fine manipulation); feeling; and pushing/ 7 pulling. (AR 409.) The following physical functions were affected by her reaching, including overhead; handling (gross 8 The ALJ discussed the opinions of these physicians, but his 9 reasons for discrediting them are the reason that this matter will be 10 remanded. 11 Goldman s opinion that Plaintiff could not finger, grip or lift 12 greater than ten pounds with her right upper extremity. 13 Thus, he indicated he did not give great weight to Dr. He stated, First, this opinion was given in connection with her 14 workers compensation case. 15 any other agency about whether an individual is disabled is 16 based on its rules. The Social Security Administration must 17 make a disability determination based on Social Security 18 law; therefore, an opinion or determination made by another 19 agency that an individual is disabled is not binding on the 20 undersigned (20 C.F.R. § 404.1504). 21 A decision or determination by (AR 16.) 22 23 The Commissioner, in his portion of the JS, reiterates this 24 rationale, but it is misplaced. The actual language in 20 C.F.R. § 25 404.1504 references a decision by any other agency about whether 26 someone is disabled. 27 line with that language. 28 1105-1106 (C.D. Cal. 2002); Desrosiers v. Sec y Health & Human Servs., That is certainly correct, and case law is in See Booth v. Barnhart, 181 F.Supp.2d 1099, 4 1 846 F.2d 573, 576 (9th Cir. 1988). 2 to disability which is relevant, but rather, the opinions of examining 3 and treating physicians regarding specific functional limitations. 4 Simply rejecting these opinions because they were rendered in the 5 Workers Compensation context falls short of the legal standard. 6 there are terms of art which are utilized in medical evaluations, such 7 as repetitive, prolonged, or similar terms, it is the job of the 8 ALJ to translate the meaning of such terms into the Social Security 9 context. But here, it is not an opinion as If But here, Dr. Goldman rendered a specific opinion that 10 Plaintiff was not capable of fingering or gripping with her right 11 upper extremity. 12 on workers compensation terminology, but is simply a medical opinion. 13 The ALJ also indicated that he would give lesser weight to these 14 physicians, who provided opinions in the workers compensation context 15 because the opinions, rendered in 2007, do not reflect Plaintiff s 16 condition in the intervening years or at the present time. 17 evidence 18 examination ( CE ) performed on October 2, 2008 which indicated that 19 Plaintiff had full range of motion in her hands, wrists, elbows, 20 shoulders, cervical spine, hips, knees and ankles. (AR 16, citing 21 evidence from Chaparral Medical Group, at AR 368.) 22 the point, because it is not range of motion that is of primary 23 concern here, but, rather, fingering and dexterity. 24 ALJ s citation to a March 11, 2009 examination in which he relied upon 25 a 26 extremities simply cites some check-the-box forms under the term 27 Neurological. The Court finds this to be wholly insufficient to 28 depreciate the opinions rendered by Plaintiff s treating and examining medical of This would not appear to be something that depends this, notation the of ALJ no cited a rheumatology neurological 5 deficits As consultative But this misses Similarly, the in the upper 1 physicians, whether 2 or not they were rendered in the workers compensation context. 3 Assuming, as the Commissioner does for purposes of argument, that 4 the functional assessments contained in a Medical Opinion re: Ability 5 to do Work-Related Activities (Physical) were completed by Dr. 6 Tremazi or another recognized medical professional (see JS at 16, and 7 AR at 408-410), the ALJ concluded that this form would be depreciated 8 in value because there was no laboratory or clinical evidence in 9 support of these findings. (AR 17.) This conclusion will have to be 10 reexamined on remand. If the form was, as Plaintiff claims, prepared 11 by Dr. Tremazi, then it was something that was supported by Dr. 12 Tremazi s own independent evaluations and examinations, which are 13 contained in the AR. Since the form was apparently obtained by the 14 same law office as presently represents Plaintiff (see AR at 408), on 15 remand, the question of who prepared this form should be easily 16 determined. 17 before the ALJ by counsel (see AR at 24), this issue could have been 18 easily 19 development of the record through counsel s inquiry, as directed by 20 the ALJ. 21 failing to do so. Moreover, since Plaintiff was represented at the hearing clarified either on the record at the hearing, or by This did not occur, and the onus falls on the ALJ for 22 The Court s determination that error was committed regarding the 23 first issue is of necessity dispositive as to the second issue, which 24 is whether the ALJ provided a complete and accurate assessment of 25 Plaintiff s RFC. 26 opinions of the physicians discussed in Issue No. 1, a matter which 27 will be revisited de novo on remand. 28 issue, which concerns whether the ALJ posed complete hypothetical This was based upon the ALJ s depreciation of the 6 Similarly, as to the third 1 questions to the VE, this will be revisited on remand, based upon a de 2 novo evaluation of the opinions of Plaintiff s physicians. 3 Since, on remand, all issues will be examined de novo, including 4 Plaintiff s credibility, the Court will only spend a short amount of 5 time on Issue No. 4. 6 depreciating Plaintiff s credibility. 7 Plaintiff can still drive an automobile, the problems she complained 8 of regarding grasping things with her hands are not entitled to be 9 evaluated as credible. Numerous reasons were provided by the ALJ for One of them was that because The Court does not see the connection between 10 fingering and manipulative difficulties and an ability to drive a car. 11 This should be further explored at the remand hearing. 12 the ALJ s assessment that Plaintiff exaggerated her symptoms would 13 appear to be based upon isolated comments of a somewhat speculative 14 nature by Plaintiff s treating psychiatrist, Dr. Tenase. 15 appear to similar speculative conclusions drawn by the ME, Dr. 16 Jackson, in January 2008. 17 certain complaints, Plaintiff either has a poor memory or she is 18 attempting to cover up the situation. (AR 251.) 19 have a poor memory. 20 comments 21 determination. as In addition, There would Dr. Jackson speculated that with regard to Maybe Plaintiff does The Court cannot view Dr. Jackson s speculative sufficient to support a negative credibility 22 Plaintiff s credibility will be evaluated de novo on remand. 23 This matter will be remanded for further hearing pursuant to the 24 25 instructions set forth in this Opinion. IT IS SO ORDERED. 26 DATED: December 3, 2012 27 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 28 7
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