Mary A Scheitlin v. Carolyn W. Colvin, No. 5:2012cv01799 - Document 18 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 MARY A. SCHEITLIN, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) ) Defendant. ) ) ___________________________________) NO. CV 12-1799-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 21 judgment are denied and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on October 17, 2012, seeking review 27 of the Commissioner s denial of social security benefits. The parties 28 filed a consent to proceed before a United States Magistrate Judge on 1 November 8, 2012. Plaintiff filed a motion for summary judgment on 2 March 21, 2013. Defendant filed a motion for summary judgment on 3 June 22, 2013. The Court has taken both motions under submission 4 without oral argument. 5 2012. See L.R. 7-15; Order, filed October 19, 6 7 BACKGROUND 8 9 Plaintiff filed applications for Title II and Title XVI benefits 10 on April 24, 2007, asserting disability since May 26, 2006 11 (Administrative Record ( A.R. ) 196-202).1 12 suffers from fibromyalgia, heart problems, diabetes, personality 13 disorders, neuropathy, Barrett s esophagus, depression, restless leg 14 syndrome, and angina (A.R. 211). 15 December 31, 2006 (A.R. 13, 203). Plaintiff alleged she Plaintiff s last insured date was 16 17 An Administrative Law Judge ( ALJ ) found that Plaintiff has 18 severe morbid obesity, heart disease, diabetes mellitus II, 19 degenerative joint disease of the left knee, osteoarthritis of both 20 knees, degenerative disc disease of the lumbar and sacral spine, and 21 fibromyalgia syndrome (A.R. 13 (appearing to adopt conditions 22 identified by the medical expert at A.R. 32-33)). 23 determined, however, that Plaintiff retains the residual functional 24 capacity to perform a limited range of light work (A.R. 14-15) (citing The ALJ also 25 26 27 28 1 Plaintiff previously had filed an application for benefits on March 24, 2003, which was denied initially and on reconsideration, and her request for a hearing was dismissed on May 25, 2006, for failure to appear at the scheduled hearing. See A.R. 65-68; Plaintiff s Motion, p. 1. 2 1 20 C.F.R. 404.1567(b) and 416.967(b)).2 2 determination, the ALJ deemed not credible Plaintiff s subjective 3 complaints suggesting greater limitation (A.R. 15-16). 4 that Plaintiff s limitations preclude the performance of Plaintiff s 5 past relevant work, but not the performance of the jobs of information 6 clerk and investigator - dealer accounts (which are light jobs), or 7 charge account clerk (which is a sedentary job) (A.R. 20 (adopting 8 vocational expert testimony at A.R. 44-45)).3 9 denied review (A.R. 1-3). 10 The Appeals Council /// 12 The ALJ found /// 11 In reaching this /// 13 14 2 Specifically, the ALJ found that Plaintiff could: 15 16 17 18 19 20 21 22 23 24 25 26 . . . stand/walk [one] hour in an [eight] hour workday, 15-30 minutes at a time; no restrictions on sitting; she must be able to use a cane occasionally; avoid uneven surfaces; lifting/carrying 10 pounds frequently, 20 pounds occasionally; occasional stooping and bending; no squatting, kneeling, crawling, running, jumping, or pivoting; no foot pedals or controls; she can climb stairs but not ladders, ropes, or scaffolds; no work on heights or balancing; she cannot do forceful gripping, grasping, or twisting with her left hand; she can occasionally do fine manipulations such as keyboarding; she can do frequent gross manipulation such as opening drawers and carrying files; no restrictions on her right dominant hand; and her work environment should be air conditioned. (A.R. 14-15 (appearing to adopt medical expert s testimony at A.R. 33-34)). Portions of the medical expert s testimony reportedly were inaudible and so could not be transcribed from the sound recording made at the hearing. See A.R. 33-34, 37-41. 3 27 28 The vocational expert testified that if Plaintiff were limited to performing only non-public, simple repetitive tasks, she still could perform sedentary jobs as a call out operator and a cutter and paster - press clipping (A.R. 46-47). 3 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration s decision to determine if: (1) the Administration s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007). 9 relevant evidence as a reasonable mind might accept as adequate to See Carmickle v. Substantial evidence is such 10 support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 11 (1971) (citation and quotations omitted); see also Widmark v. 12 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). 13 14 DISCUSSION 15 16 I. The ALJ Erred in the Evaluation of the Medical Evidence. 17 18 Plaintiff contends that the ALJ did not properly evaluate the 19 medical evidence in determining Plaintiff s functional limitations. 20 See Plaintiff s Motion, pp. 2-6. 21 testimony of the medical expert, Dr. Landau, in determining those 22 limitations, and gave the opinion of Dr. Combs, one of Plaintiff s 23 treating physicians, only limited weight (A.R. 17-18). 24 argues, inter alia, that the ALJ did not provide adequate reasons for 25 rejecting Dr. Combs opinions, and also did not fully consider Dr. 26 Landau s opinions (Plaintiff s Motion, p. 5-6). 27 entire record, the Court agrees. 28 /// The ALJ relied primarily on the 4 Plaintiff After reviewing the 1 A. Summary of the Opinions of Dr. Combs and Dr. Landau 2 3 Plaintiff reportedly began seeing Dr. Combs in November 2005, and 4 returned in July 2008 (A.R. 450, 1061). 5 Plaintiff s medical history when Plaintiff presented for a complete 6 physical in August 2008. 7 September 2008 that Plaintiff needed meniscus surgery, had foot 8 problems, and had a torn right rotator cuff (A.R. 442; see also A.R. 9 443-45 (MRI of Plaintiff s left knee showing degenerative change, See A.R. 448. Dr. Combs summarized Dr. Combs indicated in 10 strain, and tear); A.R. 789-95, 957-59 (records from March 2004 and 11 January 2009 MRIs showing rotator cuff tear to the right shoulder); 12 A.R. 796-801, 839-42 (records from 2001 through 2004 for foot and knee 13 pain issues)). 14 showed bilateral soft tissue swelling and a large left plantar 15 calcaneal spur (A.R. 436-38). 16 had significant low back pain when she sat and edema to the upper 17 shins, for which she needed to elevate her legs (A.R. 467). 18 from December of 2009 observed that Plaintiff seemed to be doing 19 better (A.R. 455). X-rays of Plaintiff s feet and ankles in October 2008 In August 2009, Plaintiff reportedly A note 20 21 Dr. Combs wrote a letter dated June 21, 2010, concerning 22 Plaintiff s alleged conditions and limitations (A.R. 1061-63). 23 Combs stated he believed that Plaintiff has been permanently disabled 24 since 2001 and that she has not been capable of full-time work for 25 much of the past decade based on her medical conditions (A.R. 1062). 26 Dr. Combs explained that due to multiple orthopedic issues and 27 fibromyalgia, Plaintiff would have to take off up to five or more days 28 per month, because her problems are exacerbated by sitting or standing 5 Dr. 1 for any length of time in one position (A.R. 1062). Dr. Combs would 2 limit Plaintiff to lifting no more than 15 pounds with no bending, 3 twisting or stooping, with periods where she could stand, sit or lie 4 down to alleviate pain, neuropathy and edema (A.R. 1062). 5 needed knee and shoulder surgeries and could not have the surgeries 6 until she lost weight (A.R. 1062-63). 7 Plaintiff s condition would prevent her from returning to work within 8 a year (A.R. 1063). Plaintiff Dr. Combs opined that 9 10 In his testimony, Dr. Landau stated several opinions regarding 11 Plaintiff s alleged conditions and limitations. See A.R. 32-41. Dr. 12 Landau appeared to opine Plaintiff retains a residual functional 13 capacity similar to the capacity the ALJ found to exist (A.R. 33-34). 14 Dr. Landau also opined, however, that he believed Plaintiff would have 15 difficulties adhering to a normal eight-hour-a-day schedule or 40 hour 16 work week schedule (A.R. 39). 17 consistent twenty-year history of chronic complaints regarding her 18 alleged limitations (A.R. 39). 19 those complaints as subjective, but on further examination Dr. Landau 20 said he could not sort out which of Plaintiff s complaints have an 21 objective basis and which have a subjective basis, because her 22 complaints have been so numerous (A.R. 39-40). 23 fibromyalgia is a subjective diagnosis, but he did not question the 24 diagnosis of fibromyalgia in Plaintiff s case (A.R. 39). 25 /// 26 /// 27 /// 28 /// Dr. Landau stated that Plaintiff had a Dr. Landau initially characterized 6 Dr. Landau stated that 1 B. Analysis 2 3 A treating physician s conclusions must be given substantial 4 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 5 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ( the ALJ must 6 give sufficient weight to the subjective aspects of a doctor s 7 opinion. . . . 8 treating physician ) (citation omitted); see also Orn v. Astrue, 495 9 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference owed to This is especially true when the opinion is that of a 10 treating physician opinions). Even where the treating physician s 11 opinions are contradicted,4 as here, if the ALJ wishes to disregard 12 the opinion[s] of the treating physician he . . . must make findings 13 setting forth specific, legitimate reasons for doing so that are based 14 on substantial evidence in the record. 15 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); 16 see Rodriguez v. Bowen, 876 F.2d at 762 ( The ALJ may disregard the 17 treating physician s opinion, but only by setting forth specific, 18 legitimate reasons for doing so, and this decision must itself be 19 based on substantial evidence ) (citation and quotations omitted). Winans v. Bowen, 853 F.2d 20 21 In the present case, Dr. Combs opined Plaintiff has been unable 22 to work since December of 2001 (A.R. 1062). Dr. Combs believed that 23 Plaintiff s multiple orthopedic issues and fibromyaglia cause 24 disabling limitations, including a need to miss work five or more days 25 per month (A.R. 1061-63). The ALJ rejected Dr. Combs opinions, 26 4 27 28 Rejection of an uncontradicted opinion of a treating physician requires a statement of clear and convincing reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 7 1 claiming: (1) the opinions were not supported by objective evidence; 2 and (2) there was no indication that Dr. Combs had a specialty in 3 mental health or relied on anything beyond Plaintiff s subjective 4 complaints as to her mental health on which to base Dr. Combs mental 5 health diagnoses (A.R. 17). 6 Combs opinions are legally insufficient. These claimed reasons for rejecting Dr. 7 8 The first claimed reason is impermissibly vague and unspecific. 9 See, e.g., McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) 10 ( broad and vague reasons for rejecting treating physician s opinions 11 do not suffice); Embrey v. Bowen, 849 F.2d at 421 ( To say that the 12 medical opinions are not supported by sufficient objective findings or 13 are contrary to the preponderant conclusions mandated by the objective 14 findings does not achieve the level of specificity our prior cases 15 have required. . . . ). 16 the record that there is a lack of objective evidence to support Dr. 17 Combs opinions. 18 would exacerbate Plaintiff s orthopedic issues and pain, and that 19 Plaintiff would need to be able to sit, stand, or lie down at will to 20 alleviate associated pain, neuropathy, and edema (A.R. 1062). 21 of Plaintiff s feet and ankles showed bilateral soft tissue swelling 22 and a large left plantar calcaneal spur (A.R. 436-38), an MRI showed 23 degenerative changes, strain, and tear to Plaintiff s left knee (A.R. 24 443-45), and edema was observed during Plaintiff s visits with Dr. 25 Combs, requiring that Plaintiff elevate her legs (A.R. 467). 26 neurologic consultation from October 2007 reported that Plaintiff had 27 lumbar radiculopathy and peripheral polyneuropathy (A.R. 557). 28 this record, the ALJ s vague assertion that Dr. Combs opinions were Moreover, it does not necessarily appear from Dr. Combs opined that prolonged sitting or standing 8 X-rays The On 1 not supported by objective evidence fails to provide a specific or 2 legitimate reason for rejecting those opinions. 3 4 The ALJ s second claimed reason for rejecting Dr. Combs opinions 5 essentially involves a non sequitur. Dr. Combs did mention that 6 Plaintiff reported times of depression, post traumatic stress 7 disorder, anxiety, and other stress-related problems, which supposedly 8 had caused problems with short term memory, following simple 9 directions, and staying on task. See A.R. 1062-63. However, Dr. 10 Combs did not assign any limitations related to these complaints of 11 alleged mental problems. 12 in his 2010 opinions were limitations assertedly stemming from 13 fibromyalgia and multiple orthopedic issues. 14 salient opinions did not concern Plaintiff s mental health, and 15 properly could not be rejected on the basis of Dr. Combs alleged lack 16 of mental health expertise. (Id.). The limitations Dr. Combs assigned Thus, Dr. Combs 17 18 Although not clearly stated as a reason for rejecting Dr. Combs 19 2010 opinions, another portion of the ALJ s decision appears to 20 describe perceived insufficiencies in Dr. Combs documentation of his 21 2009 opinions: 22 23 On December 15, 2009, Dr. Combs opined the claimant seems to 24 be doing better yet he reports filling out her forms from 25 her lawyer for work . . . Dr. Combs did not identify what 26 limitations the claimant had which prevent her from working 27 or discuss her inability to work within her treatment 28 records. Instead, this opinion must have been contained on 9 1 separate document [sic], which was not submitted with the 2 December 15, 2009 (A.R. 17). 3 4 Assuming these comments constitute part of the ALJ s rationale 5 for rejecting Dr. Combs 2010 opinions, the rationale is insufficient. 6 If the ALJ believed that the bases of Dr. Combs 2010 (or 2009) 7 opinions concerning Plaintiff s limitations were insufficiently 8 documented, the ALJ should have further developed the record. 9 C.F.R. § 404.1512(e) (the Administration will seek additional See 20 10 evidence or clarification from your medical source when the report 11 from your medical source contains a conflict or ambiguity that must be 12 resolved, the report does not contain all of the necessary 13 information, or does not appear to be based on medically acceptable 14 clinical and laboratory diagnostic techniques ); see also Smolen v. 15 Chater, 80 F.3d at 1288 ( If the ALJ thought he needed to know the 16 basis of Dr. Hoeflich s opinions in order to evaluate them, he had a 17 duty to conduct an appropriate inquiry, for example, by subpoenaing 18 the physicians or submitting further questions to them. 19 have continued the hearing to augment the record. ) (citations 20 omitted). 21 record and to assure that the claimant s interests were considered, 22 even where (as here) the claimant was represented by counsel. 23 v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). He could also The ALJ has a special duty to fully and fairly develop the Brown 24 25 Additionally, even if the Court were to discern no error in the 26 ALJ s rejection of Dr. Combs opinions, the Court would be unable to 27 find that substantial evidence supports the Administration s decision. 28 The ALJ relied primarily on Dr. Landau s testimony in finding that 10 1 Plaintiff could work (A.R. 17-19). However, the ALJ failed to 2 acknowledge the portion of Dr. Landau s testimony in which Dr. Landau 3 opined that Plaintiff would have difficulties adhering to a normal 4 eight-hour-a-day schedule or 40 hour work week (see A.R. 17-19, 39). 5 Dr. Landau also stated that Plaintiff had a 20-year history of 6 consistent chronic subjective complaints (A.R. 39). 7 [a]s far as objective, underlying disease is concerned, though, 8 [inaudible] (A.R. 39).5 9 I would have a great deal of difficulty sorting out which complaint Dr. Landau added, When questioned further, Dr. Landau stated, 10 has an objective basis and which complaint has a subjective basis 11 (A.R. 40). 12 testimony, while relying heavily on other portions of Dr. Landau s 13 testimony, was error. 14 51 (9th Cir. 2001) (given ALJ s reliance on medical expert testimony, 15 ALJ was not free to ignore a medical expert s equivocations). The ALJ s failure to address this portion of Dr. Landau s See Tonapetyan v. Halter, 242 F.3d 1144, 1150- 16 17 An individual s residual functional capacity is the ability to 18 perform sustained work-related physical and mental activities in a 19 work setting on a regular and continuing basis, which means 8 hours 20 a day, for five days a week, or an equivalent work schedule. 21 Social Security Ruling 96-8p. 22 properly discounted Plaintiff s subjective complaints, in light of 23 ambiguity in the record and Dr. Landau s uncertainty regarding the See Even assuming, arguendo, that the ALJ 24 5 25 26 27 28 For this possibly critical portion of Dr. Landau s testimony, the lack of a complete transcript tends to frustrate meaningful review. See Smith v. Califano, 470 F. Supp. 898, 898 (D.D.C. 1978) ( In view of 42 U.S.C. § 405(g) (1976), the inability of the Secretary to produce a complete record of the proceedings before the Agency frustrates judicial review ); see also Greer v. Astrue, 322 Fed. App x 513, 516 (9th Cir. 2009) (remanding because of inaudible hearing testimony). 11 1 subjective/objective bases for Plaintiff s complaints, the ALJ should 2 have addressed and reconciled all of Dr. Landau s testimony if the ALJ 3 wanted to rely on Dr. Landau s opinions. See id. 4 5 II. Remand is Appropriate. 6 7 Plaintiff requests that the Court reverse the Commissioner s 8 determination and remand the case for the immediate payment of 9 benefits, or alternatively remand for reconsideration in light of the 10 errors found above. See Plaintiff s Motion, p. 10. In the event the 11 case is remanded for further proceedings, Plaintiff requests that the 12 matter be assigned to a different ALJ.6 13 14 Because the circumstances of this case suggest that further 15 administrative review could remedy the ALJ s errors, remand is 16 appropriate. 17 generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 18 administrative determination, the proper course is remand for 19 additional agency investigation or explanation, except in rare McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 20 21 22 23 24 25 26 27 28 6 Plaintiff claims the ALJ refused properly [to] consider all of the relevant medical evidence (id.). Although the ALJ stated during the hearing that he did not have to look beyond one year prior to the date of the application (A.R. 36), the record is clear that the ALJ and the medical expert did review and consider all of the medical records Plaintiff submitted. See A.R. 16 (ALJ stating that all of Plaintiff s medical records had been reviewed and considered); A.R. 36 (medical expert testifying he had reviewed all of the medical records). 12 1 circumstances).7 2 3 Plaintiff s request that the case be assigned to a different ALJ 4 is denied. Plaintiff has not carried her considerable burden of 5 demonstrating judicial bias. 6 540, 555 (1994) ( judicial rulings alone almost never constitute a 7 valid basis for a bias or partiality motion . . . judicial remarks 8 during the course of a trial that are critical or disapproving of, or 9 even hostile to, counsel, the parties, or their cases, ordinarily do See Liteky v. United States, 510 U.S. 10 not support a bias or partiality challenge ); see also Verduzco v. 11 Apfel, 188 F.3d 1087, 1089-90 (9th Cir. 1999) ( ALJs and other similar 12 quasi-judicial administrative officers are presumed to be unbiased ); 13 Travis v. Sullivan, 985 F.2d 919, 924 (7th Cir. 1993) ( [s]electing a 14 new ALJ is a decision for the [Commissioner] to make when there has 15 been no proof of bias or partiality by the original ALJ in the case ); 16 cf. Lidy v. Sullivan, 745 F. Supp. 1411, 1418 (S.D. Ind. 1989) (court 17 will consider ordering assignment to a different ALJ on remand only 18 where there is some legitimate, compelling reason to do so). 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 7 26 27 28 There are outstanding issues that must be resolved before a proper disability determination can be made in the present case. For this reason, the Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) does not compel a reversal for the immediate payment of benefits. 13 1 CONCLUSION 2 3 For all of the foregoing reasons, Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion.8 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: July 26, 2013. 10 11 _______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 8 27 28 The Court has not reached any of the other issues raised by Plaintiff, except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 14

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