Juan Moreno v. Michael J Astrue, No. 5:2012cv00584 - Document 23 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JUAN MORENO, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,1 ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ___________________________________) NO. EDCV 12-00584-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on April 24, 2012, seeking review of 19 the denial of plaintiff s application for a period of disability and 20 disability insurance benefits ( DIB ). On May 22, 2012, the parties 21 consented, pursuant to 28 U.S.C. § 636(c), to proceed before the 22 undersigned United States Magistrate Judge. The parties filed a Joint 23 Stipulation on July 8, 2013, in which: plaintiff seeks an order 24 reversing the Commissioner s decision and remanding this case for the 25 26 27 28 1 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013, and is substituted in place of former Commissioner Michael J. Astrue as the defendant in this action. (See Fed. R. Civ. P. 25(d).) 1 payment of benefits; and the Commissioner requests that her decision be 2 affirmed 3 proceedings. or, alternatively, remanded for further administrative 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 Plaintiff filed an application for a period of disability and DIB 8 on October 27, 2008. (Administrative Record ( A.R. ) 15.) Plaintiff, 9 who was born on August 29, 1962,2 claims to have been disabled since June 10 20, 2007, due to neck and back injuries and nerves. (A.R. 67, 73, 11 112.)3 Plaintiff has past relevant work experience as a warehouse 12 worker. (A.R. 21.) 13 14 After the Commissioner denied plaintiff s claim initially and upon 15 reconsideration (A.R. 67-71, 73-77), plaintiff requested a hearing (A.R. 16 79-80). 17 appeared and testified at a hearing before Administrative Law Judge 18 Milan M. Dostal (the ALJ ). (A.R. 361-89.) Vocational expert Victoria 19 Rae also testified. 20 claim 21 plaintiff s request for review of the ALJ s decision (A.R. 2-7). 22 decision is now at issue in this action. On April 22, 2010, plaintiff, who was represented by counsel, (A.R. (Id.) 15-22), and On July 16, 2010, the ALJ denied plaintiff s the Appeals Council subsequently denied That 23 24 2 25 On the alleged disability onset date, plaintiff was 44 years old, which is defined as a younger individual. (A.R. 21; citing 20 C.F.R. § 404.1563.) 26 3 27 28 In the Joint Stipulation, plaintiff also alleges disability due to cervical disc disease, failed cervical spinal surgery, morbid obesity, depression, and anxiety. (Joint Stipulation ( Joint Stip. ) at 2.) 2 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 In his July 16, 2010 decision, the ALJ found that plaintiff met the 4 insured status requirements of the Social Security Act through December 5 31, 2011, and he has not engaged in substantial gainful activity since 6 June 20, 2007, the alleged onset date of his disability. 7 The ALJ determined that plaintiff has the severe impairments of cervical 8 disc disease and obesity, but he does not have an impairment or 9 combination of impairments that meets or medically equals one of the 10 listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 11 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (A.R. 17.) (Id.) 12 13 After reviewing the record, the ALJ determined that plaintiff has 14 the residual functional capacity ( RFC ) to perform light work as 15 defined in 20 C.F.R. § 404.1567(b) with certain limitations. (A.R. 18.) 16 Specifically, the ALJ found that, plaintiff could: 17 18 lift and carry 20 pounds occasionally, 10 pounds frequently; 19 sit and stand at option; occasionally climb ladders; all other 20 postural movements can be done frequently; moderate pain 21 symptoms in back, neck, arms, and hands with occasional hand 22 numbness but can be controlled with appropriate medications; 23 and slight depression with a slight memory loss but can be 24 controlled with medication with no side effects; and a sleep 25 disorder that has a slight affect on his work activity and can 26 be controlled with appropriate medications. 27 28 (Id.) 3 1 The ALJ found that plaintiff was unable to perform his past 2 relevant work as a warehouse worker. (A.R. 21.) However, based upon 3 his RFC assessment for plaintiff and after having considered plaintiff s 4 age, education,4 work experience, and the testimony of the vocational 5 expert, the ALJ found that there are jobs that exist in significant 6 numbers in the national economy that [plaintiff] can perform, including 7 the jobs of Assembler, small parts and Ticket Taker. 8 Accordingly, the ALJ concluded that plaintiff has not been under a 9 disability, as defined in the Social Security Act, from June 20, 2007, 10 the alleged onset date, through July 16, 2010, the date of the AlJ s 11 decision. (A.R. 21-22.) (A.R. 22.) 12 STANDARD OF REVIEW 13 14 15 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 16 decision to determine whether it is free from legal error and supported 17 by substantial evidence in the record as a whole. 18 F.3d 625, 630 (9th Cir. 2007). 19 evidence as a reasonable mind might accept as adequate to support a 20 conclusion. 21 a mere scintilla but not necessarily a preponderance. 22 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 23 record can constitute substantial evidence, only those reasonably drawn 24 from the record will suffice. 25 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 1063, 26 27 4 28 The ALJ found that plaintiff has a limited education and is able to communicate in English. (A.R. 21.) 4 1 Although this Court cannot substitute its discretion for that of 2 the Commissioner, the Court nonetheless must review the record as a 3 whole, weighing both the evidence that supports and the evidence that 4 detracts from the [Commissioner s] conclusion. 5 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 6 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 7 responsible for determining credibility, resolving conflicts in medical 8 testimony, and for resolving ambiguities. 9 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 10 11 The Court will uphold the Commissioner s decision when the evidence 12 is susceptible to more than one rational interpretation. Burch v. 13 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 14 review only the reasons stated by the ALJ in his decision and may not 15 affirm the ALJ on a ground upon which he did not rely. 16 at 630; see also Connett, 340 F.3d at 874. 17 the Commissioner s decision if it is based on harmless error, which 18 exists only when it is clear from the record that an ALJ s error was 19 inconsequential to the ultimate nondisability determination. Robbins 20 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 21 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 22 at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 23 DISCUSSION 24 25 26 Plaintiff claims the ALJ erred by not: to the opinion of Israel 27 weight 28 physician; and (2) finding that plaintiff impairments equaled Listing 5 Rottermann, (1) affording greater plaintiff s treating 1 1.04. (Joint Stip. at 3.) 2 3 4 I. The ALJ Failed To Set Forth Appropriate Reasons For Rejecting The Opinion Of Plaintiff s Treating Physician. 5 6 It is the responsibility of the ALJ to analyze evidence and resolve 7 conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 8 (9th Cir. 1989). 9 assessing a social security claim, [g]enerally, a treating physician s 10 opinion carries more weight than an examining physician s, and an 11 examining physician s opinion carries more weight than a reviewing 12 physician s. 13 2001); 20 C.F.R. § 404.1527(d). In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 14 15 The opinions of treating physicians are entitled to the greatest 16 weight, because the treating physician is hired to cure and has a better 17 opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When 18 a treating physician s opinion is not contradicted by another physician, 19 it may be rejected only for clear and convincing reasons. 20 Chater, 81 F.3d 821, 830 (9th Cir. 1995). 21 doctor, a treating physician s opinion may only be rejected if the ALJ 22 provides specific and legitimate reasons supported by substantial 23 evidence in the record. Lester v. When contradicted by another Id. 24 25 On October 17, 2007, plaintiff underwent a complete orthopedic 26 evaluation by Israel Rottermann, M.D, an orthopedic and hand surgeon. 27 (A.R. 218-25.) 28 head movement were slow and that plaintiff had tenderness in the mid Dr. Rottermann noted that plaintiff s conversation and 6 1 thoracic area, tenderness to palpation in the cervical spine and left 2 shoulder, tightness in the trapezius musculature, restricted motion in 3 the cervical spine and left upper extremity, complaints of left arm 4 pain, and positive impingement sign on his left shoulder. 5 23.) 6 spine showed spurring and a decrease of the cervical lordosis, and an x- 7 ray of the left shoulder showed slight spurring at the AC joint. 8 223.) 9 that, while a CT scan of plaintiff s head was negative, Dr. Allen, a (A.R. 221- Dr. Rottermann also noted that an x-ray of plaintiff s cervical (A.R. Dr. Rottermann reviewed plaintiff s medical records and noted 10 neurologist, diagnosed 11 cervical 12 plaintiff perform modified duties. (A.R. 224.) Based upon his physical 13 examination of plaintiff, the results of the diagnostic examinations 14 performed, and a review of plaintiff s medical records, Dr. Rottermann 15 diagnosed plaintiff with: 16 trauma, and ongoing headaches ; (2) [c]ervical strain with left arm 17 symptoms ; 18 impingement. 19 have an MRI of his cervical spine and opined that plaintiff was 20 temporarily totally disabled. strain, and plaintiff prescribed (3) pain post-traumatic medication, and headaches and recommended that (1) [s]tatus post concussion with head [l]eft (A.R. 223.) with shoulder strain/tendinitis, with Dr. Rottermann recommended that plaintiff (Id.) 21 On January 2, 2008, Dr. Rottermann re-evaluated plaintiff. 22 (A.R. 23 274-76.) Dr. Rottermann reviewed plaintiff s recent MRI of his cervical 24 spine, which showed: 25 disc 26 narrowing ; 27 protrusion, with an endplate ridge complex at C5-6, with mild central 28 and mild to moderate right nerve root canal narrowing ; and a 3 mm., protrusion a at 2 to [a] 2 to 2.5 mm., central and left paramedian C4-5 2.5 with mm., mild central central 7 and and right left root paramedian canal disc 1 based protrusion at C6-7 with central effacement and bilateral foraminal 2 narrowing. 3 quite symptomatic and recommended that plaintiff be seen by a pain 4 management physician to address his persistent neck pain with ongoing 5 headaches and dizziness. 6 plaintiff was temporarily totally disabled. (A.R. 274-75.) Dr. Rottermann noted that plaintiff was (A.R. 275.) Dr. Rottermann opined that (Id.) 7 On April 16, 2008, Dr. Rottermann conducted an orthopedic re- 8 9 evaluation of plaintiff. (A.R. 301-04.) In addition to plaintiff s 10 pain medication, Dr. Rottermann recommended that plaintiff receive 11 epidural injections for his pain. 12 continues to experience neck pain and headaches, with no improvement in 13 his 14 temporarily totally disabled. condition. (A.R. Dr. Rottermann noted that plaintiff 302.) Plaintiff was assessed as being (Id.) 15 16 In an August 13, 2008 orthopedic re-evaluation of plaintiff, Dr. 17 Rottermann noted that plaintiff continues to have persistent headaches, 18 and neck and radicular type pain. 19 reported 20 medication. 21 undergo a second epidural injection and opined that plaintiff was 22 temporarily totally disabled. becoming depressed, (A.R. 309.) (A.R. 308.) and Dr. In addition, plaintiff Rottermann prescribed him Dr. Rottermann recommended that plaintiff (Id.) 23 24 On June 12, 2009, Dr. Rottermann assessed plaintiff s RFC. 25 Rottermann opined, inter alia, that plaintiff: would experience pain or 26 other symptoms which would interfere constantly with his attention and 27 ability to concentrate; could walk one city block without rest; could 28 sit/stand for 15 minutes at a time; could sit for a total of three 8 Dr. 1 hours, stand for a total two hours, and walk for a total of three hours 2 during an eight hour day; needs to alternate periods of walking around 3 during an eight-hour workday; needs to shift positions at will from 4 sitting, standing, or walking; needs to take unscheduled breaks during 5 the workday; should elevate his leg(s) for half of the workday; can 6 frequently and occasionally lift and carry 10 pounds; can perform 7 repetitive fingering and handling for 50 percent of the workday and 8 repetitive reaching for 30 percent of the day; can bend and twist at the 9 waist for 10 percent of the workday; and can expect to be absent about 10 once a month as a result of his impairments and treatment. (A.R. 254- 11 56.) 12 be expected to last at least 12 months (A.R. 253), and Dr. Rottermann 13 noted that plaintiff needed spinal surgery (A.R. 252).5 Further, Dr. Rottermann opined that plaintiff s impairments could 14 15 In his decision, the ALJ gave little weight to the opinion of Dr. 16 Rottermann, because his opinion was not consistent with the objective 17 medical evidence of record. 18 that: 19 Dr. Rottermann were inconsistent with the medical record, because 20 plaintiff 21 Rottermann s diagnosis of status post concussion with head trauma 22 was inconsistent with the medical record, because plaintiff was noted 23 as not having head trauma as the computerized tomography scan of the 24 head following his workplace injury was normal. (A.R. 20.) Specifically, the ALJ noted (1) the sitting, standing, and walking limitations assessed by had no involvement of the lumbar spine ; and (2) Dr. (Id.) 25 26 5 27 28 On April 12, 2010, Dr. Rottermann again assessed plaintiff s RFC. (A.R. 333-37.) As the ALJ noted in his decision, Dr. Rottermann s April 12, 2012 RFC assessment was identical to his previous, June 12, 2009 assessment. (A.R. 20.) 9 1 The ALJ s first reason for giving little weight to Dr. Rottermann s 2 opinion is unavailing. While it is true that plaintiff does not have a 3 lumbar spine impairment, plaintiff has other impairments which could 4 limit the duration of time he can sit, stand, and walk. 5 plaintiff has a cervical spine impairment for which surgery has been 6 recommended, is obese, and suffers from headaches and pain in his neck, 7 shoulders, and back. 8 alone, the ALJ afforded [plaintiff] the opportunity to change position 9 from sitting to standing at will in his RFC assessment for plaintiff. For example, Indeed, in view of plaintiff s pain symptoms 10 (A.R. 19.) Clearly the ALJ s incorporation of an at will sit/stand 11 option undermines, at least in part, his conclusion that a lumbar spine 12 condition 13 limitation. 14 and legitimate reasons for affording Dr. Rottermann s opinion little 15 weight. is required for any sitting, standing, and/or walking As such, the ALJ s reasoning cannot constitute a specific 16 17 The ALJ s second reason for affording Dr. Rottermann s opinion 18 little weight is also unavailing. 19 diagnosis 20 inconsistent with the objective medical evidence of record, because the 21 computerized 22 workplace injury was normal, and thus, [plaintiff] was noted as not 23 having head trauma. 24 that, in June 2007, plaintiff suffered an on-the-job injury when at 25 least one pallet fell on the left side of his head and neck.6 of status tomography post The ALJ found Dr. Rottermann s concussion scan (A.R. 20.) of with head [plaintiff s] trauma head to following be his As an initial matter, it is undisputed (A.R. 19.) 26 27 28 6 Plaintiff reported to Dr. Rottermann that he was driving a forklift [and] working with a pallet jack [when] suddenly two pallets[, weighing approximately 20 pounds each,] fell from a height of 15 feet 10 1 Plaintiff reported feeling an immediate sharp pain, like a migraine, 2 in his head. 3 Rottermann noted in his October 17, 2007 examination notes, a CT scan of 4 plaintiff s head was performed on July 17, 2007. 5 results were negative. 6 Rottermann 7 neurologist, who diagnosed plaintiff with post-traumatic headaches and 8 cervical strain. (Id.; emphasis added.) Accordingly, while plaintiff s 9 negative CT scan may not support Dr. Rottermann s diagnosis, Dr. Allen s He also noted blurred vision. relied (Id.) upon a (A.R. 245.) As Dr. (A.R. 224.) The In diagnosing plaintiff, however, Dr. July 26, 2007 report by Dr. Allen, a 10 diagnosis certainly does. Thus, the ALJ s reasoning cannot constitute 11 a specific and legitimate reason for discrediting Dr. Rottermann s 12 opinion. 13 14 For the aforementioned reasons, the ALJ failed to properly reject 15 the opinion of Dr. Rottermann. On remand, the ALJ must provide reasons, 16 if they exist, in accordance with the requisite legal standards for 17 discrediting this physician s opinion.7 18 19 . . . [and] hit[] him on his head/neck region. he did not lose consciousness. (A.R. 219.) He was dazed but reports 20 7 27 Moreover, it is not entirely clear upon whose medical opinion(s) the ALJ relied in assessing plaintiff s RFC and whether that opinion(s) was supported by substantial evidence. In his decision, the ALJ made no mention of the opinions of the State agency physicians and only stated that he gave some weight to the opinion of qualified medical examiner and orthopedic surgeon John Santaniello. (A.R. 20.) Specifically, the ALJ: (1) found Dr. Santaniello s opinion that plaintiff can lift no more than 35 pounds at a time to be well within his RFC assessment for plaintiff; and (2) rejected Dr. Santaniello s opinion that plaintiff was under a permanent disability, because it encroach[ed] on the authority of the Commissioner. (Id.) Critically, however, the ALJ did not give any reason, let alone an appropriate reason, for rejecting Dr. Santiniello s opinion that plaintiff be limited to no repetitive movements of the cervical spine. 28 Further, as plaintiff properly asserts and the Commissioner 21 22 23 24 25 26 11 1 II. On Remand, The ALJ Should Reconsider Whether Plaintiff s 2 Impairments Equal Listing 1.04. 3 4 Based on the foregoing, there are several matters that the ALJ 5 needs to review and reconsider on remand. As a result, the ALJ s 6 conclusion regarding whether plaintiff s impairments equal Listing 1.04 7 may change. 8 claim -- to wit, that the ALJ erred in finding that plaintiff s 9 impairments Accordingly, the Court does not reach plaintiff s second do not equal Listing 1.04. To properly review and 10 reconsider this issue, the ALJ must consider Dr. Rottermann s opinion 11 properly 12 impartial 13 medically equal Listing 1.04.8 14 /// and, if medical appropriate, expert to should determine utilize if the services plaintiff s of an impairments 15 16 17 18 19 20 does not contest, it does not appear that Dr. Santaniello reviewed plaintiff s complete medical record before examining plaintiff. See 20 C.F.R. § 404.1517 (noting that [i]f we arrange for [a consultative] examination or test, . . . [w]e will also give the examiner any necessary background information about your condition ). Thus, it is unclear whether Dr. Santaniello based his assessment on a sufficiently complete picture of plaintiff s condition, giving due consideration to all relevant medical evidence of record. As a result, it does not appear that Dr. Santaniello s opinion is supported by substantial evidence. 21 22 23 Accordingly, as this case is being remanded for the reasons set forth supra, the ALJ should revisit his consideration of the various medical opinions on remand. In so doing, the ALJ may determine that a consultative examination, based upon a complete review of the medical record, is appropriate under the circumstances. 24 8 25 26 27 28 In his decision, the ALJ rejected plaintiff s claim that his impairments equaled a listing, because in order to medically equal a listing, a medical expert must testify that the impairments, in combination, medically equal a listing . . . . [and] no impartial medical expert was associated with the case to testify that [plaintiff] s impairments medically equal a listing. (A.R. 18.) Accordingly, the ALJ concluded that [plaintiff s] impairments cannot be said to medically equal a listing. (Id.) 12 1 III. Remand Is Required. 2 3 The decision whether to remand for further proceedings or order an 4 immediate award of benefits is within the district court s discretion. 5 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 6 useful purpose would be served by further administrative proceedings, or 7 where the record has been fully developed, it is appropriate to exercise 8 this discretion to direct an immediate award of benefits. 9 ( [T]he decision of whether to remand for further proceedings turns upon Where no Id. at 1179 10 the likely utility of such proceedings. ). However, where there are 11 outstanding issues that must be resolved before a determination of 12 disability can be made, and it is not clear from the record that the ALJ 13 would be required to find the claimant disabled if all the evidence were 14 properly evaluated, remand is appropriate. Id. at 1179-81. 15 16 Remand is the appropriate remedy to allow the ALJ the opportunity 17 to remedy the above-mentioned deficiencies and errors. 18 Barnhart, 336 F.3d 1112, 1116 (9th Cir. 2003)(affirming remand order 19 based, in part, on ALJ s failure to provide adequate reasons for 20 rejecting claimant s treating physicians opinions). On remand, the ALJ 21 must correct the above-mentioned deficiencies and errors. 22 so, the ALJ may need to reassess plaintiff s RFC, in which case 23 additional testimony from a vocational expert likely will be needed to 24 determine what work, if any, plaintiff can perform. 25 /// 26 /// 27 /// 28 /// 13 See Bunnell v. After doing 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: September 4, 2013 14 15 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 14
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
