Nguyen v. Commissioner of Social Security Administration, No. 8:2012cv01837 - Document 21 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the following reasons, the case is remanded to the Agency for further proceedings consistent with this Memorandum Opinion and Order. (See document for complete details) (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ANNA HAl NGUYEN, 11 Case No. SA CV 12-1837-PJW Plaintiff, MEMORANDUM OPINION AND ORDER 12 V . 13 CAROLYN W. COLVIN, Acting Commissioner of the 14 Social Security Administration, 15 Defendant. 16 17 I. 18 INTRODUCTION 19 Plaintiff appeals a decision by Defendant Social Security 20 Administration ("the Agency"), denying her application for Disability 21 Insurance Benefits ("DIB") . She claims that the Administrative Law 22 Judge ("AU") erred when he failed to properly consider the medical 23 evidence and when he rejected her testimony. For the reasons 24 explained below, the Court concludes that the ALJ erred and remands 25 the case to the Agency for further proceedings. 26 27 28 1 II. 2 SUMMARY OF FACTS AND PROCEEDINGS 3 In February 2008, Plaintiff applied for DIB, alleging that she 4 had been unable to work since March 2007, due to disorders of the 5 muscle, ligament, and fascia, as well as carpal tunnel syndrome, 6 headaches, and neck and shoulder pain. (Administrative Record ("AR") 7 54, 144) . Her application was denied initially and on reconsideration 8 and, thereafter, she requested and was granted a hearing before an 9 AU. (AR 61-66, 67-71, 73-74) . On April 13, 2010, she appeared at 10 the hearing with counsel and testified. (AR 34-53) . On September 24, 11 2010, the ALJ issued a decision, finding that she was not disabled. 12 (AR 18-28) . Plaintiff appealed to the Appeals Council, which denied 13 her request for review. (AR 1-5) . This appeal followed. 14 III. 15 ANALYSIS 16 A. The AL s Conclusion that Plaintiff Could Perform her Past Work 17 In her first claim of error, Plaintiff complains that, although 18 the ALJ claimed to credit the opinion of her treating doctor, he 19 effectively rejected that opinion when he determined that Plaintiff 20 could perform her past work as a seamstress. (Joint Stip. at 3-9) 21 For the following reasons, the Court agrees. 22 Plaintiff worked as a seamstress for a number of years. She 23 claims that, as a result of that work, she developed excruciating pain 24 in her thumbs as well as carpal tunnel syndrome in her wrists, which 25 prevents her from using her arms and hands. She filed a workers 26 compensation case as a result. Dr. Deshmukh treated her in connection 27 with that case. (AR 121-39, 242-93, 308-18.) He ultimately concluded 28 that Plaintiff was precluded from "repetitive gripping, grasping, and 2 1 torquing." (AR 251.) The parties agree that "repetitive" in this 2 context means that Plaintiff is capable of gripping, grasping, and 3 torquing no more than 50% of the time. (Joint Stip. at 3, 14.) 4 Plaintiff argues that, because of this limitation, she cannot perform 5 her prior work as a seamstress, which requires her to grip, grasp, and 6 torque, frequently, meaning up to two-thirds of the workday. (Joint 7 Stip. at 5.) The Agency argues that since the vocational expert 8 testified that her testimony was consistent with the Dictionary of 9 Occupational Titles ("DOT") the Court need not and should not inquire 10 11 further. (Joint Stip. at 6.) The Agency s argument is rejected. The fact that the vocational 12 expert testified that her testimony was consistent with the DOT is not 13 dispositive, particularly where, as here, it is plain that her 14 testimony was in error. Plaintiff cannot perform her past work as a 15 seamstress, which requires her to grip, grasp, and torque up to two- 16 thirds of the day if she is only capable of performing those actions 17 one-half of the day. 18 defined as existing more than 1/3 of the workday up to 2/3 of the work 19 day); and DOT No. 785.361-014 Garment Fitter ("Fingering: Frequently - 20 Exists from 1/3 to 2/3 of the time") . On remand, the ALJ should 21 address this contradiction. See Social Security Ruling 83-10 ("frequent is 22 23 24 25 26 27 28 The Court agrees with the Agency that this issue could have and should have been raised by Plaintiff s then-counsel at the administrative hearing. But the Court is not inclined to penalize Plaintiff for her former counsel s oversight. 3 1 B. The AL s Rejection of Dr. Miller s Opinion 2 In November 2009, Plaintiff went to see Dr. Lawrence R. Miller, a 3 pain specialist and medical evaluator, for a "state qualified medical 4 I examination" in connection with her workers compensation case. (AR 5 1397 - 413.) Based on this examination, Dr. Miller concluded that 6 Plaintiff could perform semi-sedentary duties, but was "restricted 7 from any gripping, grasping . . . [or] lifting with the upper 8 extremities" and "should avoid bilateral finger manipulation, 9 gripping, grasping, wrist torquing and fine finger movement." (AR 10 412) . The ALJ rejected Dr. Miller s opinion because it was 11 inconsistent with EMG/nerve conduction studies--which Dr. Miller 12 wanted to see to confirm his views but never did--and was contradicted 13 by Dr. Deshmukh s opinion. (AR 25.) The ALJ also relied on the fact 14 that Plaintiff did not exhibit atrophy in her arms and that Dr. Miller 15 saw her only once. (AR 25.) In her second claim of error, Plaintiff 16 argues that the ALJ erred in discounting Dr. Miller s opinion. (Joint 17 Stip. at 9) . For the reasons explained below, this argument is 18 rejected. 19 20 ALJs are tasked with resolving conflicts in the medical evidence. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). In doing so 21 they may accord greater weight to a treating physician--who was hired 22 to cure the claimant and has more opportunity to know and observe 23 her--than an examining physician, who sees the claimant only once for 24 the sole purpose of rendering an opinion in the context of legal 25 proceedings. Id. at 1041-42; see also, 20 C.F.R. ยง 404.1527(c) (2) 26 ("Generally, we give more weight to opinions from your treating 27 sources, since these sources are likely to be the medical 28 professionals most able to provide a detailed, longitudinal picture of 4 1 your medical impairment(s) and may bring a unique perspective to the 2 medical evidence that cannot be obtained from the objective medical 3 findings alone or from reports of individual examinations") 4 Dr. Miller was not Plaintiff s treating physician and examined 5 her only once. (AR 397-413.) He believed that Plaintiff was 6 extremely limited. But Plaintiff s treating physician, Dr. Deshmukh, 7 who saw her numerous times over a 15-month period and treated her for 8 her condition, opined that Plaintiff was not so limited. The AU 9 discounted Dr. Miller s opinion and accepted Dr. Deshmukh s for that 10 reason. (AR 25.) The ALJ was entitled to do so. See, e.g., Smolen 11 v. Chater, 80 F.3d 1273, 1285-86 (9th Cir. 1996) (holding treating 12 physicians opinions "are given greater weight than the opinions of 13 other physicians.") . 14 As such, this finding will be affirmed. The ALJ also relied on the fact that Dr. Miller never reviewed 15 electrodiagnostic studies that he noted in his report that he wanted 16 to review. (AR 25.) This does not seem to be a valid basis for 17 discounting Dr. Miller s opinion, however, because it appears from the 18 report that he was not intending to use those studies to evaluate 19 whether Plaintiff s impairment existed but rather to determine whether 20 her impairment was caused by compression of the upper forearm or some 21 other anomaly. (AR 412.) Thus, the AL s reliance on this factor was 22 not justified. 23 Plaintiff also criticizes the AL s reliance on her lack of 24 atrophy to question Dr. Miller s opinion. She argues that this is 25 tantamount to the ALJ acting as his own medical expert. It is not 26 clear to the Court whether an AL s reliance on a lack of atrophy is a 27 proper basis for rejecting a doctor s testimony where, as here, none 28 of the doctors in the case explained that a lack of atrophy 5 established greater capability, thus undermining Dr. Miller s opinion. 2 Arguably, common sense and common experience suggest that, if someone 3 is so disabled by pain that she is unable to use her arms for an ru extended period of time, she would experience atrophy. But it appears 5 that a medical expert would be necessary to explain the correlation 6 before an ALJ could rely on this as a basis for rejecting a doctor s 7 opinion. However, the Court need not and does not resolve this issue 8 because the AL s decision to accept the treating doctor s opinion 9 over the examining doctor s opinion is enough on its own to uphold the 10 decision. 11 C. Consideration of Plaintiff s Cervical Spine Impairment 12 In Dr. Miller s report, he recounts the results of an MRI report 13 of Plaintiff s cervical spine that he reviewed in formulating his 14 opinion. (AR 402-03.) In Plaintiff s view, this report documents 15 that she has a cervical spine impairment, which the ALJ and the other 16 doctors did not properly consider because only Dr. Miller reviewed the 17 MRI report. (Joint Stip. at 18-19.) For the following reasons, the 18 Court does not agree. 19 Despite having never seen the MRI or the MRI report, the AU 20 accepted the report s findings as summarized by Dr. Miller and found 21 that Plaintiff suffered from degenerative disc changes of the cervical 22 spine and that this condition amounted to a severe impairment. (AR 23 20, 26.) In doing so, the ALJ adopted the MRI report s findings that 24 Plaintiff exhibited "degenerative disc changes at multiple levels 25 including a 3.2 mm disc protrusion at C5-6 and C4-5 and 2.2 mm disc 26 protrusions at C3-4 and C6-7," citing Dr. Miller s report. (AR 26.) 27 Thus, Plaintiff s argument that the ALJ failed to properly consider 28 1 her cervical spine impairment described in the MRI report contained in 2 Dr. Miller s report is not supported by the record. 3 Plaintiff argues that the ALJ was required to add a functional 4 limitation to the residual functional capacity to address the cervical 5 spine impairment. (Joint Stip. at 22.) Plaintiff cites no authority 6 for this proposition nor does she set out what the additional 7 limitation should be. As such, this argument, too, is rejected. 8 Finally, Plaintiff argues that the ALJ erred because he did not 9 provide the medical expert with Dr. Miller s report or the MRI prior 10 to the hearing. (Joint Stip. at 22-23.) As is clear from the record, 11 however, the reason the ALJ failed to do so was because Plaintiff I WA waited until the day of the hearing to submit Dr. Miller s report and 13 the medical expert was not present at the hearing but testified over 14 the telephone. (AR 36-37.) Thus, the ALJ could not have provided Dr. 15 Miller s report to the medical expert before the hearing. As to the 16 MRI itself and/or the report from it, Plaintiff has still not 17 submitted either to the Agency. In fact, though it appears that it 18 was performed in March 2008, while Plaintiff was being treated by Dr. 19 Deshmukh--based on the fact that Dr. Miller s summary of the MRI is 20 virtually identical to his summary of an MRI report from Dr. Adil R. 21 Mazhar from March 2008 (AR 402-03, 409)--Plaintiff did not even share 22 it with Dr. Deshmukh at that time. (AR 121-38, 242-93.) For these 23 reasons, Plaintiff s objection here is overruled. 24 D. The ALJ Properly Considered Plaintiff s Testimony 25 In her final claim of error, Plaintiff alleges that the ALJ erred 26 when he found that her testimony was not credible. (Joint Stip. at 27 24). She specifically takes exception to the AL s finding that she was not credible due to "a lack of objective support and physical 7 1 I examination findings." (Joint Stip. at 25). For the following 2 reasons, the Court concludes that the ALJ did not err in rejecting 3 Plaintiff s credibility. 4 ALJ5 are tasked with judging the credibility of witnesses, 5 including the claimant. In making these credibility determinations, 6 they may rely on ordinary credibility evaluation techniques. Smolen, 7 80 F.3d at 1284. Where, however, a claimant has produced objective 8 medical evidence of an impairment which could reasonably be expected 9 to produce the symptoms alleged and there is no evidence of 10 malingering, the ALJ can only reject the testimony for specific, 11 clear, and convincing reasons, id. at 1283-84, that are supported by Thomas v. Barnhart, 278 F.3d 947, 12 substantial evidence in the record. 13 959 (9th Cir. 2002) 14 The ALJ questioned Plaintiff s veracity because she was being 15 treated conservatively, taking 250 mg of aspirin and 550 mg of 16 Naproxen (Aleve) each day to control her pain. (AR 27.) This is a 17 valid reason for questioning a claimant s testimony, 18 481 F.3d 742, 751 (9th Cir. 2007) Parra v. Astrue, ("[E]vidence of conservative 19 treatment is sufficient to discount a claimant s testimony regarding 20 the severity of an impairment."); see also Johnson v. Shalala, 60 F.3d 21 1428, 1434 (9th Cir. 1995), and is supported by the record. Plaintiff 22 does not dispute that she was only taking over-the-counter pain 23 medications but argues that she was just following doctor s orders and 24 should not be penalized for that. (Joint Stip. at 26.) The record 25 does not support this argument. Dr. Deshmukh had recommended a more 26 aggressive modality to treat her pain, i.e., injection therapy, which 27 Plaintiff refused. (AR 249.) Further, as Dr. Deshmukh pointed out in 28 his final report in June 2008, Plaintiff was no longer taking any .1 1 medications. (AR 285.) Thus, the AL s decision to discount 2 Plaintiff s claims of disabling pain because her conservative 3 treatment was inconsistent with those claims is supported by the 4 record and is affirmed. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 5 (9th Cir. 2008) (finding ALJ properly "inferred that Tommasetti s pain 6 was not as all-disabling as he reported in light of the fact that he 7 did not seek an aggressive treatment program and did not seek an 8 alternative or more-tailored treatment program after he stopped taking an effective medication") . This is particularly true where as here 10 her doctor had recommended a more aggressive treatment protocol and 11 she rejected it. 12 The ALJ also relied on the fact that Plaintiff s allegations of 13 pain "are not entirely supported by the objective evidence of the 14 record, which reflects greater capabilities than alleged." (AR 27.) 15 He noted that Plaintiff s physical examinations had not "revealed 16 significant findings necessitating greater limitations" than outlined 17 by the AU. (AR 27.) The record supports this finding in part and 18 undermines it in part. Dr. Deshmukh s findings seem to suggest that 19 Plaintiff could have done more than she claimed at the hearing. But 20 Dr. Miller s examinations did not. Thus, the AL s generalized 21 findings regarding "the objective evidence" is only valid if the Court 22 looks only to Dr. Deshmukh s findings and ignores Dr. Miller s. It is 23 for this reason the generalized findings are disfavored in these 24 cases. A better approach would be to describe the objective findings 25 being referred to that support the credibility finding and explain why 26 others, not being relied on, are being ignored. The AL s failure to 27 be specific here is not fatal to the credibility finding, however, 28 1 because his finding that Plaintiff s conservative treatment undermined 2 her testimony is enough to uphold it. 3 Finally, the Court notes that the ALJ also relied on the absence 4 of atrophy to conclude that Plaintiff was exaggerating her symptoms. 5 The Court leaves for another day whether the AL s reliance on this 6 factor was proper in light of the fact that none of the doctors 7 explained that, had Plaintiff really been experiencing pain as severe 8 as she claimed, she would have been unable to use her arms and would 9 have developed atrophy. 10 Iv. 11 CONCLUSION 12 For these reasons, the case is remanded to the Agency for further 13 proceedings consistent with this Memorandum Opinion and Order. 14 IT IS SO ORDERED. 15 DATED: 16 17 PATRICK J. wKLSH UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Sociai Security\NGUYEN, 1837\Memo Opinion and Order.wpd 10
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