Osmin Nahum Caldron v. Michael J Astrue, No. 2:2011cv01678 - Document 18 (C.D. Cal. 2011)

Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Oswald Parada: Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED THAT Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this Memorandum Opinion. (am)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 OSMIN NAHUM CALDRON, Plaintiff, 12 v. 13 14 MICHAEL J. ASTRUE, Commissioner of Social Security, 15 Defendant. 16 17 18 ) Case No. CV 11-01678-OP ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) The Court1 now rules as follows with respect to the two disputed issues listed in the Joint Stipulation ( JS ).2 19 20 21 1 22 23 24 25 26 27 28 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (ECF Nos. 6, 7.) 2 As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). (ECF No. 4 at 3.) 1 1 I. 2 DISPUTED ISSUES As reflected in the Joint Stipulation, the disputed issues which Plaintiff 3 4 is raising as the grounds for reversal and/or remand are as follows: (1) 5 Whether the Administrative Law Judge ( ALJ ) should have 6 afforded the opinion of the treating specialists controlling weight; 7 and (2) 8 complaints. 9 10 Whether the ALJ properly evaluated Plaintiff s subjective pain (JS at 3.) 11 II. 12 STANDARD OF REVIEW 13 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 14 decision to determine whether the Commissioner s findings are supported by 15 substantial evidence and whether the proper legal standards were applied. 16 DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence 17 means more than a mere scintilla but less than a preponderance. Richardson 18 v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); 19 Desrosiers v. Sec y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 20 1988). Substantial evidence is such relevant evidence as a reasonable mind 21 might accept as adequate to support a conclusion. Richardson, 402 U.S. at 22 401 (citation omitted). The Court must review the record as a whole and 23 consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 24 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one 25 rational interpretation, the Commissioner s decision must be upheld. Gallant v. 26 Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. The ALJ s Findings. 4 The ALJ found that Plaintiff has the severe impairments of status post- 5 lumbar discectomy and herniated discs. (AR at 13.) The ALJ concluded that 6 Plaintiff had the residual functional capacity ( RFC ) to perform sedentary 7 work, limited to lifting and/or carrying ten pounds occasionally; sitting six 8 hours in an eight-hour workday; standing and/or walking two hours in an eight- 9 hour workday with a stand/sit option; pushing, pulling, kneeling, bending, 10 stooping, and climbing stairs occasionally; and never climbing ladders, ropes, 11 or scaffolds. (Id. at 17.) Relying on the testimony of the vocational expert ( VE ), the ALJ 12 13 determined Plaintiff was able to perform his past relevant work as a 14 surveillance system monitor (Dictionary of Occupational Titles ( DOT ) No. 15 379.367-010). (AR at 21.) 16 B. The ALJ Failed to Properly Evaluate the Medical Evidence in 17 Assessing Plaintiff s RFC. 18 1. 19 Plaintiff was involved in two motor vehicle accidents on November 10, Background. 20 2006, and again on December 20, 2006. (Id. at 94.) He initially received three 21 months chiropractic treatment and physical therapy for his resulting neck and 22 low back pain. (Id. at 94, 238.) 23 On March 9, 2007, Plaintiff underwent an MRI of the lumbar spine. The 24 MRI revealed spondylolisthesis at L5/S1; mild to moderate disc protrusions 25 impinging on the nerve roots at L5/S1, and at L1/L2; bilateral neuroforaminal 26 narrowing with impingement on the L5 and L1 exiting nerve roots; and 27 bilateral facet arthropathy. (Id. at 205.) On April 10, 2007, Plaintiff saw 28 orthopedic spine surgeon, Daniel A. Capen, M.D., who reviewed the MRI and 3 1 indicated diagnoses of two level discopathy (based on the MRI, which showed 2 multilevel lumbar spine disc protrusions with bilateral neural foraminal 3 stenosis); Grade I spondylolisthesis of L5 on S1; and lumbar sprain/strain 4 syndrome. (Id. at 205-06.) Plaintiff reported to Dr. Capen that he could only 5 sit for about five minutes, and stand and walk for ten minutes before 6 experiencing increased pain. (Id. at 202.) Plaintiff also reported difficulty 7 going up and down stairs. (Id.) Examination revealed tenderness on palpation 8 at the midline, positive sacroiliac stress test on the left, positive straight leg 9 raising on the left, and reduced range of motion. (Id. at 203-04.) Dr. Capen 10 initially recommended steroid injections and pain medication, and Plaintiff 11 underwent a series of epidural injections on July 6, July 10, and August 3, 12 2007. (Id. at 264-69.) 13 On August 14, 2007, on re-examination, Dr. Capen noted that the three 14 epidural injections had not relieved Plaintiff s pain. (Id. at 197.) At that point 15 in time, Plaintiff [was] still working, and is able to work. (Id.) Examination 16 revealed range of motion that was quite good, but some tightness, and some 17 pain on bend and rotation. (Id. at 198.) 18 19 Plaintiff continued to work until October 9, 2007, his alleged date of onset. (Id.) 20 On November 13, 2007, Dr. Capen re-evaluated Plaintiff for surgical 21 intervention. (Id. at 194-96.) He again noted that the three lumbar epidural 22 steroid injections failed to adequately relieve Plaintiff of his symptoms. (Id. at 23 194.) Physical examination revealed tenderness to palpation over the midline, 24 spasm, guarding, pain with range of motion testing, and positive straight leg 25 raising on the left. (Id. at 195.) He noted that Plaintiff s injury left 26 dysfunction, disability and chronic pain. (Id.) He reported that therapy, 27 medications, and all conservative treatments, including steroid injections, had 28 failed. (Id.) He informed Plaintiff that he had the choice of attempting to live 4 1 with the pain or undergoing surgical intervention . . . with no guarantee of 2 complete or even partial relief. (Id.) 3 After that date, Plaintiff regularly saw Dr. Capen, or others in his office, 4 for follow-up and medication management while waiting for authorization for 5 surgery. On December 4, 2007, physical examination found lumbar spine 6 midline tenderness, spasm, and pain on range of motion testing. (Id. at 192.) 7 Dr. Capen opined that Plaintiff remains temporarily totally disabled. (Id.) In 8 January 2008, Dr. Capen found pain and tenderness in the paralumbar region; 9 noted that Plaintiff ambulated with an essentially normal gait ; experienced 10 increased pain on heel and toe walk attempts; and exhibited positive straight 11 leg raise bilaterally. (Id. at 189.) He again opined that Plaintiff was 12 temporarily totally disabled. (Id.) In February 2008, Dr. Capen noted ongoing 13 spasm, tightness, tenderness, and limited range of motion of the lumbar spine. 14 (Id. at 185-86.) In April 2008, Dr. Jarminski, filling in for Dr. Capen, found 15 continued paralumbar muscle tenderness, guarding, limited range of motion of 16 the lumbar spine, increased low back pain on heel/toe walk attempts, and 17 positive bilateral straight leg raising. (Id. at 183.) In May 2008, the 18 physician s assistant who examined Plaintiff under the direction and 19 supervision of Dr. Capen, noted restricted range of motion of the lumbar spine, 20 spasm, midline tenderness, positive straight leg raise bilaterally, and 21 ambulation with an antalgic short-stepped gait. (Id. at 180.) In June 2008, 22 Plaintiff was found to have a positive bilateral straight leg raise, continuously 23 worse on the left side, and range of motion that is still continuously stiff, achy 24 and limited secondary to pain. (Id. at 177.) In July 2008, the findings were 25 similar and Dr. Capen again stated that nothing else could be done for Plaintiff 26 short of surgery, for which Plaintiff was still awaiting authorization. (Id. at 27 174.) Dr. Smith later reported that in mid-2008 Plaintiff was declared 28 permanent and stationary. (Id. at 238.) 5 1 As of September 9, 2008, Plaintiff was still awaiting authorization for 2 the surgery. (Id. at 211.) On that date, Dr. Capen reiterated Plaintiff s need for 3 authorization for surgical intervention in the form of a posterior lumbar 4 interbody fusion at L4-5 and L5-S1. (Id. at 212.) 5 On September 14, 2008, Plaintiff underwent a consultative orthopedic 6 examination, performed by orthopedic surgeon, Carlos Gonzalez, M.D.3 (Id. at 7 217.) Dr. Gonzalez reviewed x-rays, apparently taken by his office, which 8 found only mild degenerative change over L5/S1 and L4-5; there is no 9 indication that he reviewed Plaintiff s 2007 MRI or any of Plaintiff s other 10 medical records. (Id. at 220.) Dr. Gonzales found Plaintiff could lift and carry 11 fifty pounds occasionally and twenty-five pounds frequently; could push and 12 pull on a frequent basis with appropriate weight; could stand, walk, and sit 13 without limitations; did not require an assistive ambulatory device; could bend, 14 kneel, stoop, crawl, and crouch on a frequent basis; and could perform 15 overhead activities. (Id. at 221.) This would constitute medium-level work. 16 DOT, Fourth Ed. 1991, App. C. 17 On October 23, 2008, state agency evaluator, N.J. Rubaum, M.D., 18 indicated that Plaintiff s primary diagnosis was low back pain. (AR at 222.) 19 The case analysis form submitted to Dr. Rubaum references receipt of Dr. 20 Capen s records dated April 2007 through July 2008. (Id. at 228.) The case 21 analysis form also summarizes the findings of the CE (consulting examiner, 22 Dr. Gonzalez), but fails to reflect any of the findings or conclusions from Dr. 23 Capen s reports. (Id.) Presumably, after reviewing both Dr. Gonzalez s report 24 and Dr. Capen s records, Dr. Rubaum completed a Physical Residual 25 Functional Capacity Assessment, a check-box form, wherein he indicated that 26 27 28 3 Plaintiff notes that Dr. Gonzalez is not board certified. (JS at 6; see also AR at 221.) 6 1 Plaintiff could lift and/or carry fifty pounds occasionally, twenty-five pounds 2 frequently; stand and/or walk about six hours in an eight-hour workday; and 3 could climb ramps/stairs, ladder/rope/ scaffolds, balance, stoop, kneel, crouch, 4 and crawl frequently. (Id. at 223-26.) This would constitute medium-level 5 work. DOT, Fourth Ed. 1991, App. C. Dr. Rubaum also opined, without 6 explanation, that claimant s credibility is seriously in doubt. (Id. at 227.) 7 Moreover, Dr. Rubaum indicated that the treating or examining source 8 statement(s) regarding the claimant s physical capabilities were in the file, but 9 he also indicated that the treating/examining source conclusions about the 10 claimant s limitations or restrictions were not significantly different from his 11 own findings. (Id.) While this is true with respect to examining source Dr. 12 Gonzalez s conclusions, as Dr. Rubaum s conclusions essentially mirror those 13 of Dr. Gonzalez, it certainly is not true with respect to the treating source 14 conclusions. Thus, the Court finds the record ambiguous as to whether Dr. 15 Rubaum actually reviewed the records from Plaintiff s treating physician, Dr. 16 Capen, prior to completing the assessment. 17 On March 23, 2009, Plaintiff was seen by orthopedic surgeon Michael 18 Smith, M.D. (Id. at 237.) Dr. Smith reviewed the 2007 MRI and diagnosed 19 chronic, symptomatic, post-traumatic injury of the lumbar spine, with lower 20 lumbar musculotendino-ligamentous involvement; right and left posterior joint 21 damage; and multilevel disc protrusions. (Id. at 242.) Based on his 22 examination, he noted objective findings of tenderness to palpation, reduced 23 range of motion of the lumbosacral spine, and positive straight leg raising in 24 the seated and supine positions. (Id. a 239-42.) 25 On April 3, 2009, Plaintiff obtained another MRI. (Id. at 258.) 26 On April 8, 2009, Plaintiff was seen by neurosurgeon Ian Armstrong, 27 M.D. (Id. at 271-73.) Dr. Armstrong reviewed the new MRI and found 28 evidence of an L5/S1 disc protrusion and extrusion. (Id. at 271.) He also 7 1 found evidence of a disc protrusion at the L4-L5 level. (Id.) He diagnosed 2 herniating lumbar discs at L4-5 and L5/S1, and to a lesser degree at L3-4; and 3 lumbar radiculopathy in both lower extremities. (Id. at 272.) He recommended 4 lumbar discectomy at the L4-5 and L5-S1 levels. (Id.) 5 On May 6, 2009, Plaintiff again saw Dr. Smith. (Id. at 258.) Dr. Smith 6 reviewed the updated MRI and Dr. Armstrong s report, and noted the 7 recommendation for lumbar disc surgery. (Id.) 8 9 On May 26, 2009, Dr. Armstrong performed lumbar surgery. (Id. at 27476.) During surgery, he found that Plaintiff had a very large free fragment of 10 herniated disc at L5-S1, central to right-sided described as a massive free 11 fragment, disrupted disc, collapsed disc. (Id. at 274.) He found facet 12 arthropathy bilaterally and lateral recess stenosis contributing to the patient s 13 problems. (Id.) Additionally, there was collapse in the up-down direction of 14 the disc space, and at L4-L5 there was some facet arthropathy left-sided, 15 affecting the ligament and left-sided subligamentous herniation, approximately 16 5 mm. (Id.) 17 On June 5, 2009, post-surgery, Plaintiff again saw Dr. Smith who 18 reported that Plaintiff had mild pain and was using a walker. (Id. at 258.) 19 On September 9, 2009, he was followed-up by Dr. Armstrong, was doing 20 well, and medication was prescribed. (Id.) On October 9, 2009, he again saw 21 Dr. Smith, who noted some residual pain. (Id.) At that time, Dr. Smith 22 diagnosed chronic, symptomatic, posttraumatic injury of the lumbar spine 23 (status post surgery). (Id. at 261.) He concluded that the residuals continued 24 because of the nature of the original accident, the condition was permanent, 25 and Plaintiff would have continuing problems in the future. (Id.) He stated 26 that Plaintiff would require a modification in his activities of daily living and 27 employment, and should avoid strenuous lifting, carrying, pushing and pulling, 28 repetitive or prolonged bending and twisting; he should limit squatting, stair 8 1 climbing, and sitting for extended periods. (Id.). He further noted that Plaintiff 2 even has trouble with extended periods of walking and standing. (Id.) 3 On February 16, 2010, Dr. Smith completed a Lumbar Spine Impairment 4 Questionnaire. (Id. at 279-84.) He opined that Plaintiff can lift and or carry ten 5 pounds occasionally; sit no more than two hours out of an eight-hour workday; 6 stand and/or walk no more than one hour per eight-hour workday; would need 7 to get up and move around every hour for ten to fifteen minutes; never push, 8 pull, bend, stoop, kneel, or work at heights. (Id. at 281-84.) He also opined 9 that Plaintiff would miss work more than three times per month due to his 10 impairments. (Id. at 283.) 11 2. Legal Standard. 12 It is well-established in the Ninth Circuit that a treating physician s 13 opinions are entitled to special weight, because a treating physician is 14 employed to cure and has a greater opportunity to know and observe the patient 15 as an individual. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). 16 The treating physician s opinion is not, however, necessarily conclusive as to 17 either a physical condition or the ultimate issue of disability. Magallanes v. 18 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating 19 physician s opinion depends on whether it is supported by sufficient medical 20 data and is consistent with other evidence in the record. See 20 C.F.R. § 21 404.1527(d)(2). If the treating physician s opinion is uncontroverted by 22 another doctor, it may be rejected only for clear and convincing reasons. 23 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter v. Sullivan, 923 F.2d 24 1391, 1396 (9th Cir. 1991). Where the treating physician s opinion is 25 controverted, it may be rejected only if the ALJ makes findings setting forth 26 specific and legitimate reasons that are based on the substantial evidence of 27 record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Magallanes, 28 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). 9 1 Contrary opinions of examining and non-examining physicians may serve as 2 additional specific and legitimate reasons for rejecting the opinions of treating 3 and examining physicians. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 4 Cir. 2001). 5 In Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007), the Ninth Circuit 6 reiterated and expounded upon its position regarding the ALJ s acceptance of 7 the opinion of an examining physician over that of a treating physician. When 8 an examining physician relies on the same clinical findings as a treating 9 physician, but differs only in his or her conclusions, the conclusions of the 10 examining physician are not substantial evidence. Orn, 495 F.3d at 632; 11 Murray v. Heckler, 722 F.2d 499, 501-02 (9th Cir. 1983). By contrast, when 12 an examining physician provides independent clinical findings that differ from 13 the findings of the treating physician such findings are substantial evidence. 14 Orn, 495 F.3d at 632; Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985). 15 Independent clinical findings can be either (1) diagnoses that differ from those 16 offered by another physician and that are supported by substantial evidence, see 17 Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1985), or (2) findings based on 18 objective medical tests that the treating physician has not himself considered, 19 see Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 20 If a treating physician s opinion is not giving controlling weight because 21 it is not well supported or because it is inconsistent with other substantial 22 evidence in the record, the ALJ is instructed by 20 C.F.R. section 23 404.1527(d)(2) to consider the factors listed in section 404.1527(d)(2)-(6) in 24 determining what weight to accord the opinion of the treating physician. Those 25 factors include the [l]ength of the treatment relationship and the frequency of 26 examination by the treating physician; and the nature and extent of the 27 treatment relationship between the patient and the treating physician. 20 28 C.F.R. 404.1527(d)(2)(i)-(ii). Other factors include the supportablility of the 10 1 opinion, consistency with the record as a whole, the specialization of the 2 physician, and the extent to which the physician is familiar with disability 3 programs and evidentiary requirements. Id. § 404.1527(d)(3)-(6). Even when 4 contradicted by an opinion of an examining physician that constitutes 5 substantial evidence, the treating physician s opinion is still entitled to 6 deference. Soc. Sec. Ruling 96-2p; Orn, 495 F.3d at 632-33. In many cases, 7 a treating source s medical opinion will be entitled to the greatest weight and 8 should be adopted, even if it does not meet the test for controlling weight. 9 Soc. Sec. Ruling 96-2p; Orn, 495 F.3d at 633. . 10 3. Analysis. 11 Plaintiff contends that the ALJ should have afforded greater weight to 12 the opinions of Plaintiff s treating specialists, Drs. Capen and Smith ( Treating 13 Physicians ). (JS at 3-9.) Plaintiff claims the ALJ rejected these opinions and 14 instead credited the opinions of the consultative examining doctor, Dr. 15 Gonzalez, who examined Plaintiff on September 14, 2008, but did not review 16 any of Plaintiff s medical records, and the state agency doctor, Dr. Rubaum, 17 who Plaintiff claims only reviewed the record up to October 20084 18 ( Examining Physicians ). (Id. at 9.) Plaintiff further contends that the ALJ 19 wrongly stated that Plaintiff s MRIs failed to show any significant 20 abnormalities. (Id.) Finally, he states that because the ALJ found that the fact 21 of Plaintiff s May 2009 back surgery suggests that [his] symptoms were 22 genuine, and also that Plaintiff s May 2009 surgery was generally successful 23 in relieving the symptoms, at the very least the ALJ should have found 24 Plaintiff disabled for a closed period from the date of his December 2006 25 26 27 28 4 As previously noted, this Court finds the evidence ambiguous as to whether Dr. Rubaum actually reviewed anything other than Dr. Gonzalez s September 2008 report and conclusions. (See Discussion supra Part III.B.1.) 11 1 accident until a reasonable time after his May 2009 surgery. (Id.) 2 The ALJ stated that she gave greater weight to the opinions of the 3 Examining Physicians over the opinions of the Treating Physicians for the 4 following reasons: (1) although the Treating Physicians treatment notes did 5 not reflect drastic deterioration, their assessment of Plaintiff s RFC grew 6 more restrictive over time; thus, their assessed limitations were out of 7 proportion with their objective findings; (2) the opinions of the Treating 8 Physicians regarding whether Plaintiff is disabled, or unable to work, are 9 reserved to the Commissioner; thus, Dr. Capen s statement that Plaintiff was 10 temporarily totally disabled was not entitled to controlling weight; and (3) 11 the opinions of the Treating Physicians contrast sharply with other evidence 12 of record, rendering them less persuasive. (AR at 19-20.) a. 13 The Examining Physicians Opinions Do Not Constitute 14 Substantial Evidence and Were Not Entitled to 15 Significant Weight 16 Preliminarily, the Court finds that the ALJ erred in assigning significant 17 weight to the opinions of the Examining Physicians, one-time examiners at 18 least one of whom apparently did not even review Plaintiff s medical records.5 19 In fact, even if Dr. Rubaum was provided with Dr. Capen s notes, he appears to 20 21 22 23 24 25 26 27 28 5 Dr. Gonzalez arguably should have been provided with Plaintiff s medical records. See 20 C.F.R. §§ 404.1517, 416.917 ( If we arrange for [a consultative] examination or test . . . [w]e will also give the examiner any necessary background information about your condition. ). Moreover, there is some authority providing that when examining physicians fail to review a plaintiff s records, their opinions do not constitute substantial evidence that could justify rejecting the opinions of treating physicians. See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (affirming the ALJ s rejection of psychological assessments by doctors who did not review objective medical data or reports from treating physicians or counselors). 12 1 have relied solely on the same evidence as Dr. Gonzalez in making his RFC 2 assessment i.e., Dr. Gonzalez s x-rays and examination. 3 Dr. Gonzalez talked to Plaintiff about the history of his condition, took 4 some x-rays, and performed his own examinations: orthopedic, cervical range 5 of motion, upper extremity range of motion, thoracolumbar range of motion, 6 lower extremity range of motion, and neurological the same tests performed 7 by Plaintiff s Treating Physicians. However, despite being informed by 8 Plaintiff that he had a long history of pain and was a candidate for surgical 9 decompression, and that more conservative treatments had provided only 10 temporary pain relief, and despite finding that Plaintiff s examination was 11 significant for decreased range of motion of his thoracolumbar spine, as well as 12 severe tenderness on palpation, and severe low back pain when performing a 13 Spurling test (used to test bilateral upper extremity radiculopathy), Dr. 14 Gonzalez nevertheless concluded that Plaintiff could lift and carry twenty-five 15 pounds frequently, and fifty pounds occasionally, could stand, walk and sit 16 without limitation, and could bend, kneel, stoop, crawl, and crouch on a 17 frequent basis. Although Dr. Gonzalez s tests and clinical findings virtually 18 mirrored those of the Treating Physicians, his conclusions, and those of Dr. 19 Rubaum, were different from the conclusions of the Treating Physicians. 20 Accordingly, the conclusions of the Examining Physicians are not considered 21 substantial evidence, and the ALJ s reliance on them was error Orn, 495 22 F.3d at 632. 23 Moreover, given the record as a whole, together with the fact that the 24 Examining Physicians did not review Plaintiff s medical records, the Court 25 finds the Examining Physicians conclusions incongruous and not based on 26 substantial evidence of record. This seems particularly true here where the 27 Treating Physician s records and opinions span from early in 2007 until well 28 over a year past the one-time evaluations of the Examining Physicians, and 13 1 well past Plaintiff s May 26, 2009, surgery. In fact, no consulting examination 2 was ever conducted after the surgery. Thus, the post-surgical examinations of 3 Plaintiff s treating doctors are uncontradicted. 4 As a result, the Examining Physicians opinions cannot be the basis for 5 rejecting the opinions of the Treating Physicians, which, therefore, must be 6 considered uncontradicted. As a result, the ALJ could only reject those 7 opinions on the basis of clear and convincing reasons supported by substantial 8 evidence. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). As discussed 9 below, the Court finds that the reasons given by the ALJ for rejecting the 10 opinions of the Treating Physicians are vague and conclusory at best, and 11 unsupported by any evidence. 12 13 14 b. The Reasons Given for Rejecting the Opinions of the Treating Physicians Were Not Clear and Convincing. With regard to Plaintiff s limitations, in late 2007, Dr. Capen found 15 Plaintiff to be temporarily totally disabled and a candidate for lumbar disc 16 surgery. (AR at 189, 192.) Sometime in mid-2008, Plaintiff was found to be 17 permanent and stationary. (Id. at 238.) On October 9, 2009, post-surgery, 18 Dr. Smith opined that surgery had been unsuccessful at returning Plaintiff to 19 performing his normal daily activities, and he would require modification of his 20 activities of daily living and employment. (Id. at 261.) Dr. Smith stated that 21 Plaintiff should avoid strenuous lifting, carrying, pushing and pulling, 22 repetitive or prolonged bending and twisting; and should limit squatting, stair 23 climbing, walking, standing, and sitting for extended periods. (Id.) On 24 February 16, 2010, post-surgery, Dr. Smith opined that Plaintiff could only sit 25 two hours in an eight-hour day and stand for one hour; could lift only ten 26 pounds occasionally; would suffer frequent limitations in concentration, 27 persistence, and pace due to his pain; and would miss work up to three times 28 per month due to his impairments. (Id. at 282.) 14 1 The ALJ stated that although the Treating Physicians assessment of 2 Plaintiff s RFC grew more restrictive over time, their notes did not reflect 3 drastic deterioration 6 and, therefore, their assessed limitations appear out of 4 [pro]portion with the objective findings and the claimant s physical 5 examination results. (Id. at 20.) The ALJ also found that their opinions 6 contrasted sharply with other evidence of record, rendering them less 7 persuasive. In support of her reasoning, the ALJ first refers to the fact that the March 8 9 9, 2007, MRI showed only mild degenerative disc changes and a mild to 10 moderate disc protrusion. (Id.) She then notes: Likewise, although there 11 was moderate narrowing of the right neural foramina at the L5-S1 level, the 12 claimant s lumbosacral spine had mild face arthropathy with moderate 13 arthropathy, mild canal narrowing and compression and mild endplate 14 changes. (Id.) These vague and conclusory statements, merely parroting the 15 MRI results, fail to provide any support for the ALJ s general proposition. 16 Indeed, the Treating Physicians recommended surgery based in part on this 17 MRI. 18 In fact, it appears that the ALJ is rejecting the Treating Physicians 19 findings by substituting her own medical conclusions for those of the 20 physicians. It is inappropriate for the ALJ to do so, particularly where the ALJ 21 did not even seek the testimony of a medical expert. Tacket v. Apfel, 180 F.3d 22 1094, 1102-03 (9th Cir. 1999) (finding it inappropriate for an ALJ to substitute 23 his own medical judgment for that of a treating physician); see also Day v. 24 Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (noting that hearing examiner 25 26 27 28 6 No authority is cited by the ALJ or by the Commissioner to support the proposition that a drastic deterioration in a plaintiff s condition is a necessary condition for an RFC to become more restrictive over time. 15 1 2 was not a qualified medical expert). Moreover, the Court is not convinced that the RFCs of the Treating 3 Physicians even changed over time. During his treatment of Plaintiff, which 4 spanned from early 2007 to August 2008, Dr. Capen repeatedly mentioned that 5 surgery was Plaintiff s only remaining recourse for pain relief. (AR at 174, 6 177, 179-80, 183, 186 ( There is not any other treatment that I would 7 recommend that would have a likelihood of providing this gentleman with any 8 improvement in his condition. ), 189, 192, 195, 215.) In December 2007 and 9 January 2008, Dr. Capen referred to Plaintiff as totally temporarily disabled. 7 10 (Id. at 189, 192.) Sometime in mid-2008 Plaintiff s condition was determined 11 to be permanent and stationary. (Id. at 238.) In March 2009, Dr. Smith noted 12 that there was a reasonable medical probability that Plaintiff would require 13 lumbar epidural blocks and/or disc surgery in the future (id. at 242), and in 14 May 2009, Plaintiff underwent the disc surgery. In October 2009, Dr. Smith 15 noted that Plaintiff s residual symptoms would continue, that his condition is 16 permanent and [he] will have continuing problems in the future necessitating a 17 modification of the activities of daily living and employment. (Id. at 261.) He 18 opined that Plaintiff should avoid strenuous lifting, carrying, pushing and 19 pulling, repetitive or prolonged bending and twisting, squatting, stair climbing, 20 sitting for extended periods, and walking and standing for extended periods. 21 22 23 24 25 26 27 28 7 In the workmen s compensation arena, temporarily totally disabled generally refers to an employee who has been temporarily disabled by an industrial injury, and connotes an inability to earn income in the open labor market during the period of recovery. Herrera v. Workmen s Comp. App. Bd., 71 Cal. 2d 254, 427 (1969); see also Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 605 (9th Cir. 1996) ( [An employee] is considered temporarily totally disabled if he is unable to earn any income during the period when he is recovering from the effects of the injury. ) (citation omitted). 16 1 (Id.) None of these opinions differ that greatly from Dr. Smith s 2010 RFC 2 assessment, wherein he more specifically opined that Plaintiff could only sit 3 two hours in an eight-hour day and stand for one hour; could lift only ten 4 pounds occasionally; would suffer frequent limitations in concentration, 5 persistence, and pace due to his pain; and would miss work up to three times 6 per month due to his impairments. (Id. at 282.) Thus, the ALJ s finding that 7 the Treating Physicians RFCs became more restrictive over time is not 8 supported in the record. 9 Elsewhere in her decision, in support of her conclusions that the Treating 10 Physicians RFC assessments contrast sharply with other evidence of record, 11 and in conjunction with her discussion discounting Plaintiff s credibility, the 12 ALJ references the following: 13 C Despite presenting to Dr. Capen with pain and tenderness . . . and 14 positive straight leg raising, the claimant ambulated with an 15 essentially normal gait with normal tendon reflexes at the knees 16 and ankles. (AR at 18 (citation omitted)); 17 C On March 23, 2009, Dr. Smith found normal muscle tone in the 18 thoracic, lumbar and buttock areas; range of motion in the spine 19 with respect to right bending, left bending, right rotation and left 20 rotation at 100% secondary to only mild pain, upon extension it 21 was 50% secondary to moderate pain; tandem gait, heel gait, and 22 tiptoe gait were normal; there was no increased pain when 23 claimant changed positions; and standing did not cause increased 24 pain (id. (citation omitted)); 25 C On October 9, 2009, Dr. Smith reported normal range of motion in 26 the claimant s lumbosacral spine with no lower extremity 27 weakness, and he had a normal tandem gait, tiptoe gait, and heel 28 gait; sensation was normal from the waist to the toes; there was no 17 1 increased pain in the supine or prone positions; hip stability, 2 flexion, rotation, abduction and extension were all normal; and 3 straight leg raising was within normal limits8 (id. (citation 4 omitted); 5 C Despite reports of severe tenderness on palpation during the 6 consultative examination, Plaintiff s range of motion was normal, 7 and he had negative straight leg raising bilaterally; motor strength, 8 reflexes and sensation were intact; there were no neurological 9 deficits; he had a normal gait and stance (id. at 18 (citation omitted)); 10 11 C Dr. Smith s February 16, 2010, opinion somewhat contradicts 12 his October 2009 report in which he observed normal range of 13 motion and no lower extremity weakness, and no spasms found, 14 only reported by Plaintiff; 15 C Dr. Smith twice reported negative straight leg raising: once 16 before the claimant s back surgery and once after the surgery (id. 17 at 20 (citations omitted)); and 18 C Following surgery, Plaintiff reported only mild weakness and a restricted range of motion only on extension (id. (citation 19 20 21 22 23 24 25 26 27 28 8 Whether the straight leg raising results were within normal limits on this date is ambiguous at best. Test results show that Plaintiff was able to raise his legs between 50 and 60 degrees (AR at 261); in March 2009 he was able to raise them between 30 and 40 degrees (id. at 241). There is a notation N in the pain column for the straight leg raising assessment that could mean either normal or no increase in the symptom if present before the examination. (AR at 259, 261.) As there was pain present before the examination (it was rated moderate in March 2009), it is quite possible that this is a positive, not a negative, straight leg raising result. Regardless, it is not clear that the results on October 2010 were within normal limits. 18 1 omitted)). 2 Once again, these examples reflect the ALJ s substitution of her own medical 3 opinion in place of the doctors. These examples also reflect the ALJ s cherry 4 picking, leaps of logic, and distortion of the language and findings from 5 Plaintiff s medical records, seemingly in order to support a denial of benefits. 6 See Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 7 872-73 (9th Cir. 2008) (administrator of benefit plan did not meet its duty in 8 deciding whether to grant or deny benefits by taking various of the claimant s 9 doctors statements out of context or otherwise distorting them in an apparent 10 11 effort to support a denial of benefits). For instance, the ALJ does not explain why someone with positive 12 straight leg raising should not have normal muscle tone or gait, or should 13 have lower extremity weakness or increased pain on changing positions or 14 standing. Noting only in passing that the results had not been consistent, the 15 ALJ mentions that Dr. Smith9 twice reported negative straight leg raising (AR 16 at 20);10 she fails to mention that the Treating Physicians together reported 17 positive straight leg raising at almost every examination on at least seven 18 occasions (April 2007, November 2007, January 2008, April 2008, May 2008, 19 June 2008, and March 2009) (id. at 177, 180, 183, 189, 195, 204, 241). She 20 states that Dr. Smith s October 2009 opinion is inconsistent with his February 21 2010 assessment because in 2009, he observed normal range of motion and no 22 lower extremity weakness, and no spasms found, only reported by Plaintiff. 23 24 25 26 27 28 9 In fact, the pre-surgical report the ALJ refers to was made by Dr. Armstrong, not Dr. Smith. (AR at 271-72.) 10 The straight leg raise is a test of the low back that stretches the nerve root. The Merck Manual of Diagnosis and Therapy, 1490 (17th Ed. 1999). A negative result indicates no pain (and thus no nerve involvement) upon this type of movement. Id. 19 1 (Id. at 20.) However, Dr. Smith s October 2009 assessment also reflected that 2 Plaintiff presented with residual pain, there was no increased pain with 3 changing positions or sitting, no increased pain in the supine or prone position, 4 he still had mild tenderness to palpation, mild pain on flexion and extension, 5 and an ambiguous straight leg raising result.11 As a result of his examination, 6 Dr. Smith concluded that Plaintiff should avoid strenuous lifting, carrying, 7 pushing and pulling, repetitive or prolonged bending and twisting; and should 8 limit squatting, stair climbing, walking, standing, and sitting for extended 9 periods. (Id. at 257-62.) Nothing in this October 2009 assessment appears 10 inconsistent with Dr. Smith s 2010 RFC assessment more specifically limiting 11 Plaintiff s lifting, carrying, pushing, pulling, bending, stooping, kneeling, 12 squatting, climbing, walking, standing, and sitting. The ALJ simply ignores the 13 Treating Physicians negative findings, which do not contrast sharply with 14 their assessed limitations, but which apparently do contrast sharply with her 15 seemingly desired conclusion. 16 Moreover, the ALJ apparently rejects the Treating Physicians opinions 17 because the records following Plaintiff s May 2009 surgery suggest some 18 improvement. As such, she improperly conflates Plaintiff s pre- and post- 19 surgical symptoms, arriving at an RFC that, if anything, tends to reflect 20 Plaintiff s post-surgical status only in the month or two following surgery. 21 This is perhaps most vividly reflected in her statement that [Plaintiff] did 22 undergo back surgery for the alleged impairment which certainly suggests the 23 symptoms were genuine. While that fact would normally weigh in the 24 claimant s favor, it is offset by the fact that the record reflects that the surgery 25 was generally successful in relieving the symptoms. (Id. at 19.) This makes 26 no logical sense in the context of determining whether Plaintiff was at any 27 28 11 See supra note 8. 20 1 point disabled from October 2007 forward in fact, it would seem to imply that 2 any claimant who finally undergoes surgery or treatment for a long-term 3 problem that is then relieved by that surgery or treatment could not be found 4 disabled prior to that surgery. In short, the ALJ s statement totally negates any 5 possible pre-surgical impairment based solely on the premise of some later 6 short-term surgical success. It also totally ignores the opinions of the Treating 7 Physicians that Plaintiff was disabled temporarily or otherwise for any 8 period of time either before or after his surgery. Nor is there any substantial 9 support for the ALJ s statement that Plaintiff s surgery was generally 10 successful. Dr. Smith s treatment notes continue for almost six months after 11 the surgery and seem to reflect that any improvement in Plaintiff s condition 12 was short-lived. This is consistent with Plaintiff s testimony at the hearing that 13 surgery did not help his condition and that, in fact, Dr. Smith was now 14 recommending he undergo a second surgery fusion on the lower back. (Id. at 15 63.) In short, the record on any post-surgery improvement is too ambiguous 16 and undeveloped to constitute a clear and convincing reason for rejecting the 17 Treating Physicians pre- and post-surgical opinions regarding Plaintiff s 18 limitations. 19 The Court finds that the ALJ improperly gave little weight to the 20 opinions of the Treating Physicians, whose opinions were neither cursory nor 21 inconsistent with the record. In fact, the inconsistent opinions are those of the 22 Examining Physicians who had either no medical records to review, or at best a 23 limited subset. Based on the foregoing, the Court finds that the ALJ s decision is not 24 25 supported by substantial evidence and is arguably contrary to the evidence of 26 record. Thus, the Court finds that this matter must be reversed and remanded 27 for further proceedings to address these issues. 28 /// 21 1 C. The ALJ Failed to Properly Evaluate Plaintiff s Credibility. 2 1. 3 An ALJ s assessment of pain severity and claimant credibility is entitled Legal Standard. 4 to great weight. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); 5 Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ s 6 disbelief of a claimant s testimony is a critical factor in a decision to deny 7 benefits, the ALJ must make explicit credibility findings. Rashad v. Sullivan, 8 903 F.2d 1229, 1231 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 9 (9th Cir. 1981); see also Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) 10 (an implicit finding that claimant was not credible is insufficient). 11 Under the Cotton test, where the claimant has produced objective 12 medical evidence of an impairment which could reasonably be expected to 13 produce some degree of pain and/or other symptoms, and the record is devoid 14 of any affirmative evidence of malingering, the ALJ may reject the claimant s 15 testimony regarding the severity of the claimant s pain and/or other symptoms 16 only if the ALJ makes specific findings stating clear and convincing reasons 17 for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see 18 also Smolen, 80 F.3d at 1281; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 19 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991). The ALJ must 20 set forth findings sufficiently specific to permit the court to conclude that the 21 ALJ did not arbitrarily discredit claimant s testimony. Thomas, 278 F.3d at 22 958; Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001); Bunnell, 947 23 F.2d at 345. 24 To determine whether a claimant s testimony regarding the severity of 25 his symptoms is credible, the ALJ may consider the following evidence: (1) 26 ordinary techniques of credibility evaluation, such as the claimant s reputation 27 for lying, prior inconsistent statements concerning the symptoms, and other 28 testimony by the claimant that appears less than candid; (2) unexplained or 22 1 inadequately explained failure to seek treatment or to follow a prescribed 2 course of treatment; (3) the claimant s daily activities; and (4) testimony from 3 physicians and third parties concerning the nature, severity, and effect of the 4 claimant s symptoms. Thomas, 278 F.3d at 958-59; see also Smolen, 80 F.3d 5 at 1284. 6 2. 7 In addition to the his pain problems, Plaintiff complained of mental 8 health issues (based on his foul mood and stress), and alleged that he is unable 9 to work in part due to headaches; hip pain; atrophy in his foot; and leg, foot, 10 Analysis. and ankle pain.12 (AR at 16.) 11 In determining Plaintiff s RFC, the ALJ made an adverse credibility 12 ruling regarding Plaintiff s pain symptoms based almost exclusively on the 13 same factors she used for rejecting the Treating Physicians opinions, i.e., that 14 his subjective symptoms were inconsistent with the medical evidence of record. 15 (Id. at 13, 16-19.) For the same reasons that the Court found the ALJ s 16 reasoning to be without support to reject the Treating Physicians opinions as 17 discussed above, it finds the ALJ s credibility determination to be equally 18 faulty. 19 Moreover, as previously discussed, to the extent the ALJ based her 20 12 21 22 23 24 25 26 27 28 The Commissioner argues that the ALJ properly rejected Plaintiff s mental impairments because he had never been treated for mental health issues; that Plaintiff did not complain that his alleged mental impairments affected his activities of daily living; that Plaintiff never complained of the numerous other physical ailments to his Treating Physicians; and that Plaintiff was never treated for the additional alleged physical impairments. (JS at 2627.) The Court agrees that the ALJ properly rejected Plaintiff s complaints of mental health issues and additional physical impairments, as unsupported by the record. (AR at 16.) His allegations that he has difficulty sleeping because of his pain does find some record support, but there is no indication it affected his ability to work. (See, e,g., id. at 237, 257.) 23 1 credibility determination on her argument that although the fact of Plaintiff s 2 back surgery lent support to the fact that his symptoms were genuine, this was 3 offset by the fact that the surgery was generally successful in relieving the 4 symptoms, this reasoning improperly conflates Plaintiff s pre- and post- 5 surgical symptomology and is not a clear or convincing reason for discounting 6 Plaintiff s credibility. Accordingly, the ALJ s credibility determination does not meet the clear 7 8 and convincing evidence standard, and it appears to this Court that the ALJ 9 arbitrarily discredited Plaintiff s testimony. 10 D. Conclusion. Based on the foregoing, the Court finds that the ALJ committed legal 11 12 error because she did not provide clear and convincing reasons for rejecting the 13 opinions of the Treating Physicians or for rejecting Plaintiff s subjective pain 14 testimony. 15 E. This Case Should Be Remanded for Further Administrative 16 Proceedings. 17 The law is well established that remand for further proceedings is 18 appropriate where additional proceedings could remedy defects in the 19 Commissioner s decision. Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 20 1984). Remand for payment of benefits is appropriate where no useful purpose 21 would be served by further administrative proceedings, Kornock v. Harris, 648 22 F.2d 525, 527 (9th Cir. 1980); where the record has been fully developed, 23 Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand 24 would unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 25 716, 719 (9th Cir. 1985). 26 Although an extremely close call, the Court concludes that further 27 administrative proceedings might serve a useful purpose and remedy the 28 administrative defects discussed above. 24 1 IV. 2 ORDER 3 Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY 4 ORDERED THAT Judgment be entered reversing the decision of the 5 Commissioner of Social Security and remanding this matter for further 6 administrative proceedings consistent with this Memorandum Opinion. 7 8 9 Dated: November 14, 2011 HONORABLE OSWALD PARADA United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25

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