Melinda F Tocher v. Michael J Astrue, No. 8:2012cv01266 - Document 15 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (See Order for details) (bem)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MELINDA F. TOCHER, 12 Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL 1/ SECURITY ADMINISTRATION, 16 Defendant. 17 ) Case No. SA CV 12-1266 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 Melinda F. Tocher ( Plaintiff ) challenges the Social Security 19 20 Commissioner s ( Defendant ) decision denying her application for disability 21 benefits. Specifically, Plaintiff contends that the ALJ erroneously gave great weight 22 to the opinion of the medical expert, Dr. Sami A. Nafoosi, whose American Board of 2/ 23 Internal Medicine certification had long been expired. (Joint Stip. at 4-6, 8-9.) The 24 25 1/ 27 2/ Carolyn W. Colvin is substituted as the proper defendant herein. See Fed. R. 26 Civ. P. 25(d). Incidentally, this is not the first time an ALJ s assessment of medical evidence 28 has been challenged because of Dr. Nafoosi s invalid board certification. See, e.g., Moreno v. Colvin, 2013 WL 1661566 (C.D. Cal. Apr. 16, 2013); Bogosian v. Astrue, 1 Court agrees with Plaintiff for the reasons stated below. 2 The Social Security regulations consider numerous factors relevant in 3 weighing medical opinions. See generally 20 C.F.R. § 404.1527. Among them is 4 the physician s specialization. Id. § 404.1527(c)(5). 5 Here, the ALJ gave the greatest weight to the testimony of the medical 6 expert, Dr. Nafoosi. (AR at 34.) In support of this assessment, the ALJ explicitly 7 referred to Dr. Nafoosi s expertise as an internal medicine specialist, a 8 characterization that was informed, at least in part, because Dr. Nafoosi was, in the 9 ALJ s words, [b]oard certified in internal medicine. 3/ (AR at 33-34.) As it turns out, Dr. Nafoosi was not board certified not since December 31, 10 11 2007, nearly three years before the administrative hearing. (Joint Stip. at 6; Exh. 1.) 12 Thus, it would appear that the immense weight afforded to Dr. Nafoosi s opinion 13 was unwarranted. Defendant, however, argues that this error is insignificant, as medical experts 14 15 do not need to be board certified in order to testify. (Joint Stip. at 7.) In fact, it is 16 not uncommon, so Defendant reasons, for uncertified experts to be given greater 17 weight than their certified counterparts. (Id.) 18 19 2012 WL 1956861, at *2-*3 (C.D. Cal. May 31, 2012). 20 21 22 23 24 25 26 27 28 3/ Granted, according to the ALJ, Dr. Nafoosi was also given great weight because his opinion was well supported by the objective medical evidence. (AR at 34.) Elsewhere, this has been good reason to believe that board certification status was not an important factor in the weight given to [a medical] opinion. Moreno, 2013 WL 1661566, at *3 n.4. But here, unlike in Moreno, additional clues suggest that Dr. Nafoosi s credentials played a significant role in how his testimony was assessed. The ALJ, for instance, took great care to note the qualifications of every physician cited, including a [b]oard-eligible psychiatrist and a licensed clinical psychologist. (AR at 32-33.) By comparison, the ALJ thrice noted Dr. Nafoosi s expertise. (See id. ( [b]oard certified in internal medicine, internal medicine specialist, and his expertise is in internal medicine ).) 2 1 Even so, the Court may review only those reasons asserted by the ALJ in his 2 decision. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). It is thus of 3 no import here whether, as Defendant has demonstrated, the ALJ could have given 4 Dr. Nafoosi greater weight for other reasons.4/ Moreover, contrary to Defendant s assertions, harm is apparent here. 5 6 Although [board] certification is unnecessary, it is an added prestige upon which 7 ALJs tend to rely. Bogosian, 2012 WL 1956861, at *3. And, in relying on such an 8 indicia of prestige, the ALJ necessarily discounted other medical evidence, including 9 the opinions of at least four examining physicians.5/ See Carmickle v. Comm r, Soc. 10 Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (examining physicians are 11 typically afforded great deference). It appears likely, then, that the ALJ s credibility 12 determination may have been different had he known that Dr. Nafoosi was not 13 actually board certified. A finding of error is therefore appropriate. With error established, this Court has discretion to remand or reverse and 14 15 award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no 16 useful purpose would be served by further proceedings, or where the record has been 17 fully developed, it is appropriate to exercise this discretion to direct an immediate 18 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). 19 But where there are outstanding issues that must be resolved before a determination 20 can be made, or it is not clear from the record that the ALJ would be required to find 21 4/ For instance, Defendant notes that the medical record is [c]onsistent with Dr. Nafoosi s opinion and shows that Plaintiff s carpal tunnel syndrome improved 23 with treatment. (Joint Stip. at 7.) Similarly, Defendant notes that Plaintiff s 24 alleged dysfunction is inconsistent with her ability to stand, walk and sit for 25 extended periods. (Id.) 22 5/ These physicians include Debra S. Peterson, Plaintiff s treating chiropractor; Dr. James Law, Plaintiff s primary care physician; Dr. Neda Jahaverian, the 27 psychiatric consultative examiner; and Dr. Halimah McGee, the psychological 28 consultative examiner. (See AR at 32-33.) 26 3 1 plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. 2 See id. at 594. 3 Here, in light of the ALJ s error, the credibility of Dr. Nafoosi and other 4 medical sources must be properly assessed. Therefore, on remand, the ALJ shall 5 reevaluate their opinions and either credit them as true, or provide valid reasons for 6 any portion that is rejected. 7 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 8 REVERSING the decision of the Commissioner denying benefits and 9 REMANDING the matter for further administrative action consistent with this 10 decision.6/ 11 12 Dated: May 29, 2013 13 ____________________________________ 14 Hon. Jay C. Gandhi United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 6/ In light of the Court s remand instructions, it is unnecessary to address 28 Plaintiff s remaining contentions. (See Joint Stip. at 9-13, 16-23, 26-27.) 4

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.