Trisha Capone v. Michael J Astrue, No. 8:2010cv00525 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION & ORDER by Magistrate Judge Ralph Zarefsky. (ib)
Download PDF
<![CDATA[
Trisha Capone v. Michael J Astrue Doc. 17 O 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 TRISHA CAPONE, 11 12 13 14 15 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. SA CV 10-00525 RZ MEMORANDUM OPINION AND ORDER 16 This case comes down to a question of which doctor better can estimate the 17 impact of Plaintiff’s back problems. Finding that the Administrative Law Judge erred in 18 preferring the estimate of the non-examining physician over that of Plaintiff’s treating 19 physician, the Court reverses and remands for further consideration. 20 There is no dispute about Plaintiff’s back problems, or about the extensive 21 narcotic medication Plaintiff takes to mitigate her pain. With variations in emphasis, both 22 the treating physician Dr. Groth and the non-examining physician Dr. Sinesa made 23 allowance for Plaintiff’s medication, and the Administrative Law Judge also stated that part 24 of Plaintiff’s impairment was an “opiod dependence.” The real dispute is over Plaintiff’s 25 ability to sit or stand, and for what length of time. 26 In letters to Plaintiff’s counsel, treating physician Dr. Groth opined that 27 Plaintiff could either sit or stand only for limited periods at any one time, sometimes as 28 little as 15-30 minutes. The non-examining expert Dr. Sinesa, however, opined that Dockets.Justia.com 1 Plaintiff could sit or stand for four hours during a work day. [AR 38-39] The 2 Administrative Law Judge adopted the opinion of the non-examining physician over that 3 of the treating physician. [AR 15] Under the circumstances of this case, that was error. 4 A treating physician’s opinion usually is preferred over that of other 5 physicians, ones who examine and ones who merely review records, for the very reason 6 that the treating relationship gives an opportunity for greater insight into the patient’s 7 status. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Smolen v. Chater, 80 F.3d 8 1273, 1285 (9th Cir. 1996); Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). This is 9 perhaps nowhere more true than when dealing with back pain, which can affect different 10 people to different degrees. A treating physician’s opinion is entitled to controlling weight 11 if it is supported by medically accepted diagnostic techniques and is not inconsistent with 12 other medical evidence in the record. Even when it is not entitled to controlling weight, 13 however, the opinion still is entitled to deference, and generally is preferred over that of 14 a non-treating but examining physician, which in turn is preferred over that of a non- 15 examining physician. To reject a treating physician’s opinion under these circumstances, 16 the Administrative Law Judge must provide specific and legitimate reasons supported by 17 substantial evidence in the record. Holohan v. Massanari, 246 F.3d 1195, 1201-03 (9th 18 Cir. 2001). 19 There is no reference in the record to an ability on Plaintiff’s part to do what 20 the nonexamining physician said she could do — sit or stand for four hours at a time. No 21 treating or examining physician stated that she could do so, as the non-examining physician 22 himself acknowledged. [AR 40-41] The Court thus examines the basis for rejecting the 23 treating physician’s opinion with the backdrop that the non-examining physician gave an 24 opinion on Plaintiff’s capacity without any other medical opinion to back it up. 25 The Administrative Law Judge said that the treating physician’s opinion of 26 Plaintiff’s ability to sit and stand was belied by the fact that Plaintiff had traveled to Hawaii 27 and New York without any difficulty. [AR 19] But this takes liberties with the evidence. 28 The two trips were two and a half years apart, Hawaii coming in March 2005 [AR 354], -2- 1 and New York in January 2008 [AR 875]; it’s not as if Plaintiff was a frequent traveler, 2 which might more readily lead to a conclusion that Plaintiff was able to tolerate a greater 3 length of sitting than she testified to. Moreover, one cannot assume that the trips 4 themselves were made without effort; the record does not indicate whether, for example, 5 Plaintiff shifted positions frequently, walked up and down the aisles, or fell asleep — or 6 whether she, in fact, sat still in her seat for several hours. Occasional travel does not 7 gainsay the level of pain. Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986). 8 The treating physician also gave a broader opinion, essentially that Plaintiff 9 was incapable of working. This the Administrative Law Judge rejected because it was 10 unsupported by “the objective evidence” and inconsistent with his own treating records. 11 [AR 19] So long as a medically-supported diagnosis has been presented, however, the 12 absence of “objective evidence” is not a proper basis for rejecting the treating physician’s 13 opinion. Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). Nor, although he 14 referenced the records, did the Administrative Law Judge identify which of the treating 15 physician’s records were inconsistent with the treating physician’s opinion. 16 Administrative Law Judge retains the ultimate decision on disability, but rejecting the 17 treating physician’s opinion requires more than he provided here. The 18 Given these difficulties, the decision of the Commissioner cannot stand. On 19 the present record, there was not a sufficient justification for preferring the opinion of the 20 non-examining physician over that of the treating physician. Accordingly, the decision of 21 the Commissioner is reversed, and the matter is remanded to the Commissioner for further 22 proceedings not inconsistent with this Memorandum Opinion. 23 IT IS SO ORDERED. 24 DATED: December 8, 2010 25 26 27 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 28 -3-
]]>
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.
