Noe Puente v. Michael J. Astrue, No. 2:2008cv06703 - Document 14 (C.D. Cal. 2009)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton. The matter is remanded for further hearing consistent with this memorandum opinion. (rh)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 NOE PUENTE, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-06703-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) provided 1 legally sufficient reasons for rejecting the opinion of Drs. 2 Nagelberg and Berman; 3 2. 4 5 Whether the ALJ provided legally sufficient reasons for rejecting the opinion of Dr. Silver; and 3. Whether the ALJ properly evaluated Plaintiff s testimony. 6 7 This Memorandum Opinion will constitute the Court s findings of 8 fact and conclusions of law. 9 concludes 10 that for the After reviewing the matter, the Court reasons set forth, the decision of the Commissioner must be reversed. 11 12 I 13 THE OPINIONS OF TREATING PHYSICIANS DRS. NAGELBERG AND BERMAN 14 WERE NOT PROPERLY EVALUATED 15 16 A. Medical Evidence. 17 Plaintiff s first issue is that the ALJ provided legally 18 insufficient reasons to reject the opinions of Drs. Nagelberg and 19 Berman. 20 Orthopedic Surgery and a Fellow of the American Academy of Orthopaedic 21 Surgeons. (See AR at 292.) 22 treating physician in 2003 and 2004, primarily as a result of an 23 industrial injury which Plaintiff suffered in February 2002. (See AR 24 at 316.) 25 Orthopedic 26 Orthopaedic 27 concerning Plaintiff s workers compensation matter. (See AR at 312.) 28 Following an examination of Plaintiff on January 22, 2004, and a Dr. Nagelberg is a Diplomate of the American Board of Dr. Nagelberg was Plaintiff s primary Dr. Berman, also a Diplomate of the American Board of Surgery, Surgeons, and was a Fellow the of Agreed 2 the American Medical Academy Examiner of ( AME ) 1 subsequent review of extensive medical records, Dr. Berman wrote a 2 report 3 evaluated Plaintiff in October 2002. 4 Berman, he suffered trauma with injury on the job, and thereafter 5 treated with Dr. Nagelberg. 6 shoulder on June 16, 2003, followed by physical therapy until November 7 2003. 8 Plaintiff reported that there was no benefit from the surgical 9 treatment. (AR 313.) on April 12, 2004. (AR 312-324.) Dr. Berman initially As Plaintiff reported to Dr. He underwent surgery on his right He has had medications and injections, and acupuncture. Even after the surgery, Plaintiff continued to 10 complain of right shoulder pain, with limited mobility and a cramping 11 pain along with a feeling of weakness. (Id.) Dr. Berman s examination 12 revealed 13 hyperextension, and right and left lateral deviation, with lower back 14 pain. Dr. Berman found decreased range of motion ( ROM ) on the right 15 shoulder. (AR 314.) Impingement testing elicited right shoulder pain. 16 (Id.) 17 revealed that Plaintiff continued to complain of pain in his right 18 shoulder area, neck and back, for a significant time after the 19 surgery. 20 discomfort 21 increased pain upon lifting and carrying, and the pain was also 22 aggravated by reaching, moving the arm backwards, or lifting the upper 23 extremity above the shoulder level. (AR 318.) 24 fifty percent of normal mobility in forward flexion, Dr. Berman s review of Dr. Nagelberg s notes (see, infra) (AR in 315.) Dr. Plaintiff s Berman also shoulder noted area. continuous Plaintiff pain and experienced Dr. Berman concluded that Plaintiff s lumbar spine condition 25 remained unchanged, and was not 26 preclusions from heavy lifting and repetitive bending and stooping, as 27 well as prolonged sitting, and prolonged ambulation. 28 the right shoulder area, Dr. Berman noted that Plaintiff has had post3 permanent and stationary with With regard to 1 operative care and other treatment, including injections, but, 2 unfortunately, his condition has not changed much despite surgery. 3 He continues to have mobility loss similar to that noted at the time 4 of the initial evaluation. (AR at 321.) 5 Dr. Berman noted limited mobility and pain with mobility, with 6 some residual weakness in the right shoulder and positive impingement 7 testing. 8 basis, 9 activities as well as activities at and above shoulder level. (AR 10 There is some grip strength loss on the right. Dr. Berman recommended that Plaintiff avoid On this heavy work 322.) 11 Dr. Nagelberg examined Plaintiff on April 3, 2004. At that time, 12 Dr. Nagelberg concluded that Plaintiff had reached permanent and 13 stationary status, and issued a report dated April 6, 2004, and a 14 supplemental report on April 29, 2004. 15 291), Dr. Nagelberg concluded that Plaintiff has suffered permanent 16 disability. 17 reviewed Dr. Berman s report following Dr. Berman s examination of 18 Plaintiff on January 22, 2004 and indicated his agreement with Dr. 19 Berman s opinions and recommendations. (AR 287.) 20 2004, Dr. Nagelberg found Plaintiff s condition to be permanent and 21 stationary. (Id.) In that latter report (AR In an August 25, 2004 report (AR 286-287), Dr. Nagelberg As of August 25, 22 Plaintiff received a consultative internal medicine evaluation 23 ( CE ) on September 16, 2005 from Dr. Klein, a board-certified 24 internal medicine doctor. (AR 459-464.) Plaintiff complained of 25 diabetes and right shoulder pain. (AR 459.) Plaintiff indicated that 26 he had had shoulder surgery three years prior, and had difficulty 27 raising his arm. (Id.) 28 revealed no joint swelling or erythema with range of motion of the Dr. Klein s examination of the shoulder area 4 1 right shoulder revealing pain at 80/150 degrees, internal and external 2 rotation normal with pain. (AR 462.) 3 can lift and carry 50 pounds occasionally and 25 pounds frequently, 4 can walk and stand for six hours in an eight-hour workday, with 5 appropriate breaks, can sit for six hours in an eight-hour workday, 6 but 7 occasionally due to the previous surgery. (AR 463-464.) is limited in overhead work Dr. Klein opined that Plaintiff with the right shoulder to 8 9 B. The ALJ s Opinion. 10 In his decision (AR 16-26), the ALJ essentially found that with 11 regard to Plaintiff s physical impairments, Plaintiff s treating 12 physicians 13 conclusions as those of Dr. Klein and the State Agency examining 14 consultant. 15 agreement that the [Plaintiff s] impairments limit him to medium 16 exertion, subject to occasional overhead reaching with the right 17 shoulder. (AR 21.) 18 repeatedly reported he was experiencing no pain. (AR 22.)1 19 (Dr. Nagelberg and Berman) had arrived at similar The ALJ interpreted all of these sources as being in The ALJ found that after January 2004 Plaintiff The ALJ noted that Plaintiff s workers compensation medical 20 sources often opined that he was temporarily totally disabled. 21 ALJ noted, that, Even if I assume that these assessments were 22 meritorious, at some point, these reports ceased as of January 6, 23 2004, 24 application. (AR 23.) 25 nearly 14 months prior to the [Plaintiff s] date The of With regard to pain, the ALJ depreciated Plaintiff s credibility, 26 27 28 1 Although the ALJ relied upon the findings of the CE, Dr. Klein, in Dr. Klein s September 16, 2005 report, he noted that one of Plaintiff s chief complaints was right shoulder pain. (AR 459.) 5 1 finding that treatment records are replete with reports that he has 2 been, in fact, experiencing no pain, whatsoever. (AR 24, exhibit 3 citations omitted.) 4 Based on the foregoing analysis, the ALJ assessed that Plaintiff 5 can perform medium work, with the ability to lift and carry 50 pounds 6 occasionally, 7 limitation except that he is limited to occasional overhead reaching 8 with the right shoulder, and must avoid concentrated exposure to cold 9 and vibrations. (AR 21.) 25 pounds frequently, without further significant 10 11 C. 12 In the hierarchy of medical opinions in Social Security cases, it 13 is the treating physician who is, generally, accorded the most 14 credibility. (See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).) 15 Where the opinions of treating physicians are controverted by those of 16 another medical source, based on independent clinical findings, the 17 ALJ may only reject the opinion of the treating physician by citing 18 specific and legitimate reasons based on substantial evidence in the 19 record. 20 2004). 21 Analysis. See Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. Here, the ALJ did not articulate his rejection of the opinions of 22 the treating physicians, Drs. Nagelberg and Berman. Rather, the ALJ 23 found that these opinions were consistent with the opinions of the CE 24 and of the State Agency physicians. 25 conclusion. 26 consistent basis, contained significantly greater restrictions on 27 Plaintiff s functional ability than those of the lesser medical 28 sources. This is an incorrect factual Indeed, the opinions of the treating physicians, on a One such restriction concerns Plaintiff s ability to raise 6 1 his right arm above shoulder level. 2 that he simply could not do this in a work environment, while the CE 3 found that Plaintiff would be limited to only occasional lifting above 4 shoulder level.2 5 also noted that at the hearing before the ALJ (AR 517-544), a 6 vocational expert ( VE ) opined that if Plaintiff s testimony were 7 taken as credible, he would not be able to do any of his past work. 8 Similarly, he could not do light work. 9 posed to the VE by Plaintiff s attorney at the hearing incorporated an 10 inability to lift more than 10 pounds, stand for more than an hour, 11 sit for perhaps half an hour, walk three to four blocks, and an 12 inability to raise his hand above shoulder level or lift more than 13 five pounds to a maximum at chest level. (AR 541.) 14 the hypothetical posed by the attorney contains more exertional 15 restrictions than found by the ALJ, the inclusion in the hypothetical 16 of an inability to raise his arm above shoulder level, resulting in a 17 conclusion of disability, raises a warning flag as to the significance 18 of this exertional limitation. 19 only being occasionally able to lift above shoulder level and being 20 unable to do so at all in a work environment is not a de minimis 21 difference. 22 The treating physicians found Clearly, this is a significant distinction. It is The hypothetical question While, certainly, Simply put, the difference between In and of itself, this error merits remand. The Court will, 23 however, briefly touch upon the ALJ s failure to deal with the 24 preclusion by Dr. Berman, and agreed with by Dr. Nagelberg, against 25 prolonged sitting and prolonged ambulation. (See AR at 321.) While 26 2 27 28 The CE is an internist, not an orthopedist. Consequently, his opinion on orthopedic issues is entitled to less value than the opinions of Drs. Nagelberg and Berman, who are orthopedists. See 20 C.F.R. §404.1527(d)(5). 7 1 these terms were delivered in the workers compensation context, they 2 may not be ignored in a Social Security case. (See Coria v. Heckler, 3 750 F.2d 245, 247 (3rd Cir. 1984); Booth v. Barnhart, 181 F.Supp.2d 4 1099 (C.D. Cal. 2002). 5 lengths to translate Dr. Berman s preclusion against heavy lifting 6 and 7 equivalent, finding that under California workers compensation law, 8 a heavy lifting preclusion means, effectively, a loss of 50 percent of 9 an individual s pre-injury work capacity, as does a preclusion from repetitive Indeed, in his decision, the ALJ went to some bending and stooping into a Social Security 10 repetitive bending and stooping. (AR 22.) 11 that Dr. Berman s assessment equates generally with a medium exertion 12 for Social Security disability purposes, ... (Id.) 13 however, deal with Dr. Berman s preclusion against prolonged sitting 14 and ambulation, although this was mentioned, in passing, in his 15 decision. (Id.) 16 decision by an analytical process which is not found in the ALJ s 17 decision simply constitutes a post-hoc analysis. 18 Berman s and Dr. Nagelberg s conclusions that Plaintiff is precluded 19 from 20 appropriately, with the assistance of the VE. prolonged Thus, the ALJ determined The ALJ did not, The Commissioner s attempts to support the ALJ s sitting and ambulation should On remand, Dr. be addressed 21 22 II 23 THE ALJ DID NOT PROVIDE LEGALLY SUFFICIENT REASONS 24 TO REJECT THE OPINION OF DR. SILVER, A RHEUMATOLOGIST 25 As part of Plaintiff s workers compensation case, Dr. Silver, 26 who practices in internal medicine and rheumatology, performed an AME 27 in rheumatology on Plaintiff on October 25, 2006. (AR 184-202.) After 28 taking a history, Dr. Silver performed 8 an extensive physical 1 examination which included a tender point survey including control 2 points. 3 examination revealed the diagnostic hallmarks of the presence of 4 fibromyalgia. (AR 193.) 5 temporarily totally disabled and would be extremely unlikely to be 6 able to return to his previous employment. (AR 194.) (AR 187-188.) Dr. Silver concluded that Plaintiff s Dr. Silver opined that Plaintiff was 7 The ALJ rejected Dr. Silver s opinion for four reasons: 8 1. Because Dr. Silver is not a treating source; 9 2. Because he only examined Plaintiff once; 10 3. Because he did not review the entire record; 11 4. Because no other doctor offered the diagnosis that Dr. 12 13 Silver offered. (AR 19.) 14 15 16 17 As will be set forth in this decision, none of these reasons can be substantiated. As to the first two, they can be quickly disposed of. A medical 18 source need not be a treating source in order to render a valid 19 medical opinion. 20 Security 21 regulations and cases which universally state this fact. 22 troubling is the Commissioner s position in the JS which finds merit 23 in the ALJ s rejection of Dr. Silver s assessment because Dr. Silver 24 was not a treating source. (See JS at 19.) 25 and the Commissioner s present reliance upon a claim that Plaintiff 26 did not report experiencing pain and injury is completely belied by 27 the record. 28 internal medicine examination (upon which the ALJ relied), which was law, This is a basic and fundamental principle in Social and the Court sees no reason to cite applicable Equally Moreover, both the ALJ s As the Court noted, for example, during the consultative 9 1 performed in 2005, Plaintiff reported experiencing pain. 2 the Commissioner again indulges in a post-hoc rationale, arguing that, 3 apparently, Dr. Silver s opinion does not document the presence of 4 fibromyalgia because it does not substantiate at least 11 out of 18 5 tender points necessary to support a diagnosis. 6 does not underlie the ALJ s rejection of Dr. Silver s opinion. 7 effect, the ALJ never got to the content of Dr. Silver s opinion 8 before rejecting it. Moreover, the ALJ s last rationale, that no 9 other the doctor offered diagnosis offered Moreover, But this rationale by Dr. Silver, In is 10 particularly unpersuasive, because Dr. Silver is a rheumatologist, 11 which is the medical speciality best suited to evaluate rheumatology. 12 (See Benecke v. Barnhart, 379 F.3d 587, 594, at n.4 ( Rheumatology is 13 the relevant speciality for fibromyalgia ... specialized knowledge may 14 be 15 fibromyalgia that is poorly understood within much of the medical 16 community. (Citations omitted.)) 17 particularly important with respect to a disease such as On remand, Dr. Silver s opinion will be considered and credited. 18 19 III 20 THE ALJ DID NOT PROPERLY EVALUATE PLAINTIFF S CREDIBILITY 21 In the decision, the ALJ depreciated Plaintiff s credibility due 22 to the lack of psychiatric and medical treatment supporting these 23 claims and the inconsistencies in the [Plaintiff s] statements and 24 actions, ... (AR 24.) 25 The ALJ s reasoning does not support a depreciation of 26 credibility. 27 indicated Plaintiff has not been experiencing any pain. 28 Plaintiff s counsel correctly notes, most of the records cited to by First, the ALJ relies upon reports that allegedly 10 But, as 1 the ALJ concern Plaintiff s treatment for diabetes. Further, as the 2 Court has indicated, the ALJ relied upon Dr. Klein s CE internal 3 medicine examination in 2005. 4 complained of suffering such pain. During that examination, Plaintiff 5 Also relevant to the subjective pain analysis is the fact that 6 after suffering a traumatic injury, Plaintiff underwent extensive 7 treatment, 8 injections. 9 recommended further surgical procedures, and fusion as to his lumbar including surgery, acupuncture, physical Still, he suffered pain in that area. therapy and Dr. Nagelberg 10 spine. According to Dr. Nagelberg, [Plaintiff] is apprehensive to 11 proceed with any of the above treatment. 12 that Plaintiff underwent significant and extensive treatment in an 13 attempt to alleviate his pain, but it was unsuccessful. 14 permanent and stationary, which, in workers compensation terms, means 15 that after the employee has reached maximum medical improvement, or 16 his condition has been stationary for a reasonable period of time, he 17 is considered permanent and stationary. (See Gangwish v. Workers 18 Comp. Appeals Bd., 89 Cal.App.4th 1284, 1289 n.7 (2001)(quoting Cal. 19 Code Regs. Tit. 8, section 10152).) Thus, the Court concludes He was found 20 The ALJ faults Plaintiff for not receiving additional medical 21 treatment, but fails to account for the apparent fact that Plaintiff, 22 during that time, did not have appropriate medical insurance to cover 23 additional treatment. 24 treating physicians to be permanent and stationary. 25 maximum medical improvement. 26 inability to receive further medical care, satisfactorily explains the 27 absence of treatment during this time period. 28 discount credibility. (See Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. In addition, Plaintiff had been found by his He had reached This, combined with his financial 11 This is not a reason to 1 1995).) 2 Finally, the ALJ s interpretation of Plaintiff s MMPI testing as 3 producing an invalid elevated score, and finding that Plaintiff is an 4 individual who over endorsed, if not exaggerated, symptoms is not 5 supported by the report of the psychologists who administered the 6 test, Drs. Halote and Burke. (AR 244-273.) 7 administered to Plaintiff, while the results were considered invalid, 8 the psychologists stated that, The cause of this elevation is 9 unclear. Indeed, as to the MMPI-2 It may be due to [Plaintiff s] attempt to minimize his 10 psychological symptoms and appear better adjusted than he is. (AR 11 259.) 12 certainly not one of malingering, and it does not constitute a proper 13 basis for depreciation of Plaintiff s credibility. 14 15 16 This was not a definitive finding of exaggeration, For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 17 18 19 and DATED: July 15, 2009 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 12

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