Artemio Lopez Esparza v. Michael J Astrue, No. 2:2007cv03743 - Document 16 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the reasons discussed (READ ATTACHED ORDER), the Agency's decision is REVERSED and the action is REMANDED for further proceedings consistent with this opinion. (esa)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ARTEMIO LOPEZ ESPARZA, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 07-3743 PJW MEMORANDUM OPINION AND ORDER 16 17 Before the Court is Plaintiff s appeal of a decision by Defendant 18 Social Security Administration ( the Agency ), denying his application 19 for disability insurance benefits. 20 the Agency s decision is REVERSED and the action is REMANDED for 21 further proceedings consistent with this opinion. 22 For the reasons discussed below, Plaintiff protectively filed an application for disability 23 insurance benefits on March 2, 2005, alleging that he had been 24 disabled since May 29, 2003. 25 After his application was initially denied, he requested and was 26 granted an administrative hearing. 27 counsel at the hearing on June 5, 2006, and testified before an 28 Administrative Law Judge ( ALJ ). (Administrative Record ( AR ) 84, 140.) (AR 33.) Plaintiff appeared with (AR 409-48.) On June 26, 2006, the 1 ALJ issued a decision denying the application. 2 appealed to the Appeals Council, which denied Plaintiff s request for 3 review on April 20, 2007. 4 action. 5 (AR 5.) (AR 18-27.) Plaintiff Plaintiff then commenced this Plaintiff raises two claims of error. He argues first that the 6 ALJ failed to provide clear and convincing reasons for rejecting his 7 allegations of disabling pain. 8 contends that the ALJ erred in rejecting the treating physician s 9 opinion and relying, instead, on the consulting doctor s opinion. (Joint Stip. at 3-8.) Second, he 10 (Joint Stip. at 12-20.) 11 that the ALJ erred on both grounds and orders remand for further 12 proceedings. 13 For the following reasons, the Court finds Plaintiff claimed that his back, neck, shoulder, ankle, and knee 14 have caused him problems ever since he was hurt at his job in 2003. 15 (AR 108-09.) 16 all the time. 17 two to four times a day, helped relieve the pain. 18 According to Plaintiff, he was unable to sit or stand for longer than 19 five or ten minutes and could walk only one or two blocks. 20 He also testified that he had no strength in his right hand, and that 21 he can use his hands to grip or grasp for no longer than five or ten 22 minutes. 23 to balance. 24 25 Plaintiff testified that he had pain all over his body (AR 414.) (AR 416.) He explained that Vicodin, which he takes (AR 415.) (AR 415.) Plaintiff also claimed to use a cane to walk and (AR 416.) The ALJ rejected this testimony for four clear and convincing reasons: 26 First, the claimant s allegation[s] of severe pain are 27 inconsistent with the record as a whole and are not supported by 28 the objective medical findings in evidence of record. 2 Second, an 1 MRI of the lumbar spine performed November 11, 2005, revealed 2 mild spinal canal narrowing and spinal neuralforaminal 3 encroachment of the L5 exiting nerve root, same at L5-S1 nerve 4 root (Exhibit 12F, page 88). 5 an inability to provide[] his own personal care. 6 is no evidence the claimant has undergone regular treatment or 7 therapy consistent with the severity of his complaints for any 8 period of twelve or more continuous months, which could be 9 reasonably expected from [someone] suffering unrelenting pain, Third, the claimant has not alleged Fourth, there 10 debilitating symptoms, and severe functional limitations such as 11 those alleged by the claimant. 12 13 (AR 24-25.) Though the ALJ did not note this, it is obvious from his decision 14 that he found that Plaintiff s severe impairments (carpal tunnel 15 syndrome, cervical and thoracic sprain, right knee meniscus tears, and 16 right shoulder tendinitis) could produce some pain. 17 ALJ did not find that Plaintiff was a malingerer, nor is there any 18 affirmative evidence that he was. 19 reject Plaintiff s pain testimony only for specific, clear, and 20 convincing reasons.1 21 Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th 22 Cir. 1996)). (AR 431.) (AR 431-32.) The Thus, the ALJ could Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th 23 24 1 25 26 27 28 The Court notes that the standard the ALJ applied-- clear and convincing --is not quite right. The reasons must also be specific. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) ( [T]he ALJ can reject the claimant s testimony about the severity of her symptoms only by offering specific, clear, and convincing reasons for doing so. (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). 3 1 The ALJ s first reason for rejecting Plaintiff s testimony was 2 that it was inconsistent with the record as a whole and was not 3 supported by the objective medical findings in evidence of record. 4 (AR 25.) 5 apply to any social security case. 6 guidance as to what, specifically, the ALJ was referring to in this 7 431-page record. 8 medical records -which mostly come from Plaintiff s treating 9 physician -support Plaintiff s testimony. This reason is not specific, clear, or convincing. It could The parties and the Court have no In fact, it appears to the Court that most of the Further, having accepted 10 that Plaintiff had produced objective medical evidence that his 11 condition might cause some pain, the ALJ could not then reject those 12 allegations of pain on the ground that they were unsupported by the 13 medical evidence. 14 (9th Cir. 2006) (noting that the ALJ s justification that claimant s 15 testimony was not consistent with or supported by the overall medical 16 evidence of record was exactly the type we have previously recognized 17 the regulations prohibit ) (citing Social Security Ruling ( SSR ) 18 96-7p; Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)). 19 For this reason, this justification is rejected. 20 See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 The ALJ s second reason for questioning Plaintiff s credibility 21 was that a November 11, 2005, MRI of Plaintiff s lumbar spine 22 revealed mild spinal canal narrowing and spinal neuroforaminal 23 encroachment of the L5 exiting root, same at L5-S1 nerve root. 24 25.) 25 testimony and the Court is not sure. 26 narrowing of the spinal canal was described as mild. 27 not explain this and the Court has no independent basis for finding 28 that a mild narrowing of a spinal canal would not cause pain. (AR The ALJ did not explain why this MRI undermined Plaintiff s 4 Perhaps, it is because the But the ALJ did Indeed, 1 in the Court s view, the MRI provides objective evidence that 2 Plaintiff suffers from a condition that is reasonably likely to 3 produce some pain. 4 to the MRI cannot serve as a clear and convincing reason for rejecting 5 Plaintiff s credibility. 6 Without further explanation, the ALJ s reference The third reason cited by the ALJ was that Plaintiff had not 7 alleged an inability to provide[] his own personal care. 8 A disability claimant, however, need not be incapacitated to qualify 9 for benefits. (AR 25). Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) ( The 10 Social Security Act does not require that claimants be utterly 11 incapacitated to be eligible for benefits, and many home activities 12 are not easily transferable to what may be the more grueling 13 environment of the workplace, where it might be impossible to 14 periodically rest or take medication ) (quoting Fair v. Bowen, 885 15 F.2d 597, 603 (9th Cir. 1989)). 16 contrast Plaintiff s claimed limitations with his daily activities, 17 the ALJ failed to make any findings to demonstrate that the two were 18 inconsistent. 19 disabling pain may be discredited by specific finding that claimant 20 is able to spend a substantial part of his day engaged in pursuits 21 involving the performance of physical functions that are transferable 22 to a work setting ). 23 finding that Plaintiff was not credible. 24 Assuming that the ALJ s point was to C.f. Fair, 885 F.2d at 603 (noting allegation of Thus, the ALJ s third reason does not support a The ALJ s fourth reason for finding Plaintiff not credible was 25 that there was no evidence that Plaintiff had undergone regular 26 treatment or therapy consistent with the severity of his complaints. 27 (AR 25.) This is not supported by the record. 28 5 1 An unexplained or inadequately explained failure to seek 2 treatment or follow a prescribed course of treatment is a relevant 3 factor in assessing pain testimony. 4 1114 (9th Cir. 1999) (holding claimant s allegation that she 5 experienced pain approaching the highest level imaginable was 6 inconsistent with minimal conservative treatment she received); see 7 also Flaten v. Sec. of Health and Human Servs., 44 F.3d 1453, 1464 8 (9th Cir. 1995) (holding ALJ entitled to draw inference from general 9 lack of medical care over period of several years). Meanel v. Apfel, 172 F.3d 1111, Here, however, it 10 is not clear that Plaintiff failed to obtain appropriate treatment or 11 therapy. 12 Plaintiff had been treated appropriately and that Plaintiff had been 13 compliant with his doctor s instructions. 14 not make any finding that Plaintiff s treatment was minimal or 15 conservative. 16 Plaintiff received epidural injections in his back and surgery on his 17 right knee and wrist. 18 Plaintiff s treatment was appropriate for his condition and that he 19 did not fail to undergo treatment recommended by his doctor. 20 reason, this justification for rejecting Plaintiff s credibility is 21 overruled. 22 The medical expert, Dr. Michael Gurvey, testified that (AR 430-31.) The ALJ did In fact, the record shows that, among other things, (AR 210, 237-38, 383.) Thus, it appears that For this Having concluded that all four of the ALJ s reasons for rejecting 23 Plaintiff s credibility are not adequate, the Court next turns to the 24 issue of what is the appropriate remedy. 25 Lingenfelter, the Court is required to send the case back to the 26 Agency for an award of benefits. 27 imply that the district court is required to remand for an award of 28 benefits where, as here, the ALJ has failed to provide proper reasons Plaintiff argues that, under Though Lingenfelter can be read to 6 1 for rejecting the claimant s testimony, 504 F.3d at 1041, other Ninth 2 Circuit authority holds that the Court has the discretion to remand 3 for further proceedings. 4 871, 876 (9th Cir. 2003) (reviewing apparent conflict among Ninth 5 Circuit cases on this issue and holding that district court has 6 discretion to remand for further proceedings where ALJ s credibility 7 finding is in error). 8 inconsistent lines of cases, it would seem that the courts have drawn 9 a distinction for those cases where it was clear that the claimant was See, e.g., Connett v. Barnhart, 340 F.3d If there is an explanation for these apparently 10 entitled to benefits and those in which it was not so clear. 11 at bar falls into the latter category and, therefore, remand is 12 appropriate. 13 The case Plaintiff s second claim of error is that the ALJ failed to give 14 appropriate weight to the opinion of Plaintiff s treating physician, 15 Dr. William J. Mealer. 16 requires remand. 17 (Joint Stip. at 12-20.) This claim also The record reveals that Dr. Mealer, a board-certified 18 orthopedist, first examined Plaintiff on July 2, 2003. 19 Dr. Mealer diagnosed Plaintiff with cervical, lumbosacral, abdominal, 20 and ankle sprains, and recommended that MRI scans be performed. 21 309-10.) 22 and October 2004. 23 opined that Plaintiff was unable to continue his work as a welder 24 because he had lost 50 percent of his pre-injury functional capacity 25 and could not work above shoulder level. 26 (AR 303-12.) (AR Dr. Mealer saw Plaintiff ten more times between August 2003, (AR 316-76.) On October 25, 2004, Dr. Mealer (AR 372-74.) Dr. Mealer prepared a report in February 2005, concluding in it 27 that Plaintiff sustained significant injuries to his neck, lower back, 28 right shoulder, right abdomen, right knee, ankles, and right wrist, 7 1 causing him to be a candidate for right knee arthroscopy and right 2 carpal tunnel release. 3 completed a physical residual functional capacity questionnaire in 4 which he reported that he saw Plaintiff on a monthly basis; that 5 Plaintiff s prognosis was not good; that Plaintiff was in constant 6 pain that was mostly severe; and that Plaintiff had a significantly 7 reduced range of motion in his lower back and shoulders. 8 401.) 9 administrative hearing testimony. 10 (AR 223-24.) In June 2006, Dr. Mealer He assessed functional restrictions consistent with Plaintiff s (AR 395-401.) that Plaintiff was temporarily totally disabled. 11 (AR 395- Dr. Mealer concluded (AR 400.) The ALJ rejected Dr. Mealer s opinion regarding Plaintiff s 12 limitations for four reasons: 1) the restrictions assessed by Dr. 13 Mealer in the 2006 questionnaire were inconsistent with the 14 restrictions assessed by Dr. Mealer in the 2004 report; 2) Dr. 15 Mealer s opinion was not supported by the totality of the medical 16 evidence or Dr. Mealer s progress notes; 3) Dr. Mealer s testimony was 17 inconsistent with the testimony of the non-examining, non-treating 18 medical expert; and 4) Dr. Mealer included in his report that 19 Plaintiff was disabled, which the ALJ noted was a decision reserved to 20 the Agency. 21 reasons explained below, the Court agrees. 22 (AR 24.) Plaintiff claims this was error. For the It is well-established that, [b]y rule, the Social Security 23 Administration favors the opinion of a treating physician over non- 24 treating physicians. 25 Massanari, 257 F.3d 1033, 1037 (9th Cir. 2001); Smolen, 80 F.3d at 26 1285. 27 an impairment must be given controlling weight if the opinion is well Orn, 495 F.3d at 631; see also Aukland v. A treating physician's opinion as to the nature and severity of 28 8 1 supported and not inconsistent with other substantial evidence. 2 SSR 96-2p; Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001). 3 Even where a treating physician s opinion is not to be given 4 controlling weight because it is not well-supported or because it is 5 inconsistent with other substantial evidence in the record, an ALJ 6 must still consider various factors--including the length, nature, and 7 extent of the treatment relationship; the amount of relevant evidence 8 that supports the opinion; the consistency of the medical opinion with 9 the record as a whole; and the speciality of the physician providing 10 the opinion--in determining what weight to give it. 11 631 (citing 20 C.F.R. ยง 404.1527 and SSR 96-2p). 12 physician s opinion is contradicted by a non-treating physician s 13 opinion, the ALJ must provide specific and legitimate reasons, 14 supported by substantial evidence in the record, for rejecting the 15 treating doctor s opinion. 16 F.3d 821, 830 (9th Cir. 1996)). 17 physician is a consulting doctor who never examined the claimant and 18 relies on the same clinical findings as the treating physician to 19 arrive at the opposite conclusion as the treating physician, the 20 consulting doctor s opinion does not amount to substantial evidence. 21 Id. Orn, 495 F.3d at Where the treating Id. at 632 (citing Lester v. Chater, 81 Where, however, the non-treating 22 The first reason provided by the ALJ for rejecting Dr. Mealer s 23 opinion was that Dr. Mealer found Plaintiff to be significantly more 24 restricted in a 2006 report than he did in a 2004 report. 25 In the 2004 report, Dr. Mealer noted that Plaintiff s subjective 26 complaints were consistent with varying degrees of pain, from slight 27 to moderate, that was largely intermittent. 28 determined that Plaintiff s capacity to perform various activities was 9 (AR 369.) (AR 24.) Dr. Mealer 1 reduced by approximately 50 percent. 2 determined that Plaintiff was unable to perform his usual work. 3 374.) 4 reported that Plaintiff was in constant pain and that he was 5 substantially more restricted. 6 (AR 372.) Dr. Mealer also (AR Approximately 16 months later, in a 2006 report, Dr. Mealer (AR 396, 398, 400.) The ALJ concluded that because Dr. Mealer s two reports were 7 different, Dr. Mealer s opinion was entitled to little or no weight. 8 The ALJ failed to discuss, however, how Plaintiff s condition had 9 changed during this period. Dr. Mealer s progress notes, which the 10 ALJ also did not address, show, for example, that, although Plaintiff 11 had a period of improvement after knee surgery in 2005, he complained 12 of a lot of pain in July 2005, and increased pain in his lower back 13 in October 2005. 14 complained of a lot of pain all over his body, which caused Dr. 15 Mealer to note that Plaintiff needed a referral for an injection 16 ASAP. 17 (AR 275-81.) On December 1, 2005, Plaintiff (AR 273.) On this record, the Court cannot conclude that the fact that the 18 restrictions in Dr. Mealer s 2004 and 2006 reports were different 19 undermines Dr. Mealer s credibility. 20 ( Consistency does not require similarity in findings over time 21 despite a claimant s evolving medical status. ) 22 rejected. 23 See Orn, 495 F.3d at 634 Thus, this reason is The ALJ s second reason for discounting Dr. Mealer s opinion was 24 that it was not supported by the totality of the medical evidence or 25 his own progress notes. 26 generalizations to discount Plaintiff s credibility, the use of 27 generalizations here is equally unpersuasive. 28 what the ALJ was referring to when he concluded that Dr. Mealer s (AR 24.) Like the ALJ s reliance on 10 The Court does not know 1 opinion was not supported by the totality of the medical evidence. 2 Most of the treating records are from Dr. Mealer. 3 seem to support his notions concerning Plaintiff s condition. 4 has not cited a single reference in the record that contradicts Dr. 5 Mealer s opinion. 6 opinion is rejected. 7 (AR 270-402.) They The ALJ As such, this reason for rejecting Dr. Mealer s The third reason the ALJ provided for concluding that Dr. 8 Mealer s opinion was not entitled to any weight was that Dr. Mealer s 9 opinion was inconsistent with the opinion of the consulting doctor, 10 Dr. Gurvey. 11 primarily on Dr. Mealer s work. 12 or perform any tests on him. 13 majority of which came from Dr. Mealer, and offered an opinion that 14 was different than Dr. Mealer s. 15 presumption that Dr. Mealer s opinion was entitled to deference. 16 495 F.3d at 633. 17 could not constitute substantial evidence to support the ALJ s 18 rejection of Dr. Mealer s opinion. 19 (AR 24.) Dr. Gurvey s opinion, however, was based Dr. Gurvey did not examine Plaintiff He merely read the medical record, the This is not enough to overcome the Orn, Thus, in this case, Dr. Gurvey s conclusions alone Id. The final reason why the ALJ rejected Dr. Mealer s opinion was 20 that Dr. Mealer had concluded that Plaintiff was disabled. 21 The ALJ found that this was an issue reserved for the Agency. 22 24.) 23 claimant is disabled is reserved to the Agency, the fact that a doctor 24 renders an opinion on the issue does not mean that his entire work 25 should be disregarded. 26 to an insurance company in connection with a worker s compensation 27 claim, and where, presumably, the insurance company wanted the doctor 28 to offer an opinion on the issue of disability. (AR 400.) (AR Though it is true that the ultimate decision of whether a Especially here, where the opinion was offered 11 In any case, the ALJ 1 should have simply rejected or ignored the disability opinion and 2 looked to Dr. Mealer s other opinions in determining whether Plaintiff 3 was disabled. 4 For these reasons, this justification is also rejected. Because the ALJ erred in his assessment of Plaintiff s 5 credibility and Dr. Mealer s opinion, the decision is reversed and the 6 case is remanded for further proceedings. 7 IT IS SO ORDERED. 8 DATED: October 29 , 2008. 9 10 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\ESPARZ, A 3743\Memo_Opinion.wpd 12
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