Vartouhi Danielian Namagerdi v. Michael J Astrue, No. 2:2012cv00591 - Document 21 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: For the reasons stated below, the Commissioner's decision is reversed and the matter is remanded for further proceedings. (See document for details.) This case is reversed and remanded so that the ALJ may further evaluate the treating physician evidence and make appropriate findings. (rla)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 17 18 VARTOUHI DANIELIAN NAMAGERDI, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the ) Social Security ) Administration, ) ) Defendant. ) ) Case No. CV 12-00591-MLG MEMORANDUM OPINION AND ORDER 19 Plaintiff Vartouhi Danielian Namagerdi ( Plaintiff ) seeks judicial 20 review of the Commissioner s final decision denying her application for 21 supplemental security income ( SSI ) pursuant to Title XVI of the Social 22 Security Act. For the reasons stated below, the Commissioner s decision 23 is reversed and the matter is remanded for further proceedings. 24 25 I. Factual and Procedural Background 26 Plaintiff was born on September 23, 1946. (Administrative Record 27 ( AR ) at 64). She is unable to speak English and has work experience as 28 a hairdresser. (AR at 75, 99). 1 On November 6, 2008, Plaintiff filed an application for SSI, 2 alleging that she has been disabled since January 1, 2008, due to joint 3 pain, back pain, leg pain, insomnia, nervousness, anxiety, weakness, 4 poor memory, arthritis, osteoporosis, and thyroid and stomach problems. 5 (AR at 64-67, 76). The Social Security Administration denied Plaintiff s 6 application. (AR at 27-31). 7 An administrative hearing was held before Administrative Law Judge 8 Joel B. Martinez ( the ALJ ) on May 5, 2010. (AR at 20-22). Plaintiff s 9 attorney appeared at the hearing, but Plaintiff voluntarily waived her 10 right to appear and testify. (AR at 10, 99). In a written decision dated 11 June 12 substantial gainful activity since the date she filed her application 13 for SSI, November 6, 2008 (step one). (AR at 12). Next, the ALJ found 14 that Plaintiff s medically determinable impairments of degenerative disc 15 disease of the lumbar spine and dysthymia were not severe, as they did 16 not significantly limit Plaintiff s ability to perform basic work- 17 related activities for 12 consecutive months (step two). (AR at 12, 14); 18 see 20 C.F.R. at 416.921(a). Accordingly, the ALJ determined that 19 Plaintiff was not under a disability from the date her application was 20 filed through the date of the decision. (AR at 16). 23, 2010, the ALJ found that Plaintiff had not engaged in 21 On November 18, 2011, the Appeals Council denied review, and the 22 ALJ s decision became the final decision of the Commissioner. (AR at 1- 23 3). 24 Plaintiff commenced this action for judicial review on February 1, 25 2012. 26 Plaintiff contends that substantial evidence did not support the ALJ s The parties filed a Joint Stipulation 27 28 2 on August 16, 2012. 1 step two finding that Plaintiff s lumbar spine impairment is not severe.1 2 (Joint Stipulation at 3-5, 18-19). Plaintiff seeks a remand for payment 3 of benefits or, in the alternative, for further proceedings. (Joint 4 Stipulation at 19). The Commissioner requests that the ALJ s decision be 5 affirmed. (Joint Stipulation at 19). 6 7 8 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 9 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 10 findings and decision should be upheld if they are free from legal error 11 and are supported by substantial evidence based on the record as a 12 whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 13 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 14 evidence means such evidence as a reasonable person might accept as 15 adequate 16 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more 17 than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d 18 at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 19 2006)). To determine whether substantial evidence supports a finding, 20 the reviewing court must review the administrative record as a whole, 21 weighing both the evidence that supports and the evidence that detracts 22 from the Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 23 720 (9th Cir. 1996). If the evidence can reasonably support either 24 affirming or reversing, the reviewing court may not substitute its 25 judgment for that of the Commissioner. Id. at 720-721. to support a conclusion. Richardson, 402 U.S. at 401; 26 27 1 28 Plaintiff does not dispute the ALJ s step two determination with respect to her other impairments. (Joint Stipulation at 18). 3 1 III. Discussion 2 Plaintiff contends that the ALJ erred in finding her lumbar back 3 impairment to be not severe at step two of the sequential evaluation 4 process. (Joint Stipulation at 3-5, 18-19). Specifically, Plaintiff 5 contends that the ALJ failed to consider the clinical findings of her 6 treating physician. (Joint Stipulation at 4). Plaintiff also asserts 7 that the ALJ employed an improper standard for determining severity at 8 step two. (Joint Stipulation at 4-5). The Court agrees with Plaintiff. 9 Records from Plaintiff s treating physician, Noobar Janoian, M.D., 10 consistently identified 11 Plaintiff s chronic problems. Dr. Janoian, who frequently saw Plaintiff 12 for check-ups, medication refills, and treatment of her various medical 13 conditions, first diagnosed Plaintiff with backache NOS, in February 14 2007. (AR at 158). Plaintiff s diagnosis went unchanged until August 15 2008, when Plaintiff underwent a CT scan of her lumbar spine. (AR at 16 194). The scan showed that Plaintiff had a 4 to 5 mm right paracentral 17 disc bulge at L5-S1, narrowing of the right lateral recess exacerbated 18 by facet moderate hypertrophy, and moderate spondylosis deformans at L3- 19 L4 and L4-L5. (AR at 194). After the CT scan, Dr. Janoian modified 20 Plaintiff s diagnosis to lumbar disc displacement. (AR at 195-96, 201, 21 203, 205, 207, 210, 213, 215, 218). Although Dr. Janoian did not 22 describe Plaintiff s back condition in any great detail, his physical 23 examinations 24 moderate pain with movement that sometimes radiated down Plaintiff s 25 leg. (AR at 119, 122, 195, 201, 216). Dr. Janoian s records suggested 26 that Plaintiff s medically documented lumbar spine impairment had more 27 than a minimal effect on her ability to work and was therefore, severe. 28 See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) ( An impairment of Plaintiff s Plaintiff revealed 4 back impairment Plaintiff as experienced one mild of to 1 or combination of impairments may be found not severe only if the 2 evidence establishes a slight abnormality that has no more than a 3 minimal effect on an individual s ability to work. ) (quoting Smolen v. 4 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). 5 The ALJ summarily dismissed Dr. Janoian s opinion. (AR at 14). The 6 ALJ stated that Dr. Janoian s notes reflected no more than routine, 7 first-line management of her symptoms. (AR at 14). This finding did not 8 reach the level of specificity required to reject the opinion of a 9 treating physician. See Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 10 1998) ( The ALJ must do more than offer his conclusions[;] [h]e must set 11 forth his own interpretations and explain why they, rather than the 12 doctors, are correct. ); Embrey v. Bowen, 849 F.2d 418, 421-22 (9th 13 Cir. 14 sufficient objective findings . . . does not achieve the level of 15 specificity our prior cases have required . . . . ). The ALJ had an 16 obligation to set forth his own interpretations of the medical evidence 17 and explain why they, rather than Dr. Janoian s findings were correct. 18 Embrey, 849 F.2d at 421 23. Although an ALJ may reject a treating 19 physician s opinion that is conclusory and unsupported by clinical 20 findings, see Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002), 21 such is not the case here. As noted above, Plaintiff s CT scan and Dr. 22 Janoian s findings on examination provided some objective evidence of 23 Plaintiff s lumbar spine impairment. (AR at 194). 1988) ( To say that medical opinions are not supported by 24 In making the step two determination, the ALJ adopted the residual 25 functional capacity assessment made by the consultative internist, 26 Michael S. Wallack, M.D., who found that Plaintiff had no functional 27 limitations. (AR at 14). Based primarily on Dr. Wallack s opinion, the 28 ALJ concluded, [t]he objective evidence fails to establish that the 5 1 [Plaintiff] is unable to perform all work activity as she alleged. (AR 2 at 14). The ALJ also stated, the objective medical evidence and overall 3 treatment history are consistent with the residual functional capacity 4 and inconsistent with the claimant s allegations that she is unable to 5 perform any work activity. (AR at 13). It appears the ALJ applied an 6 incorrect 7 impairments. At step two, there is no requirement that all work activity 8 be precluded. Rather, the step two evaluation is a de minimis test 9 intended to weed out the most minor of impairments. Smolen, 80 F.3d at 10 1290; Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987). An impairment is 11 not severe only if the evidence establishes a slight abnormality that 12 has no more than a minimal effect on an individual[ s] ability to work. 13 Smolen, 80 F.3d at 1290 (internal quotations marks omitted). That 14 Plaintiff s back impairment may not have precluded Plaintiff from 15 performing all work activity does not justify the ALJ s step two 16 severity determination. (AR at 14); Smolen, 80 F.3d at 1290. Further, 17 consideration of a claimant s residual functional capacity does not 18 occur until after the step two determination has been made, and there 19 has been a finding of severity. See SSR 96 8p, *2 (if disability 20 determination cannot be made on the basis of medical factors alone at 21 step three of the sequential disability evaluation process, ALJ then 22 must identify claimant s functional limitations and restrictions and 23 assess his or her remaining capacities for work-related activities). standard in determining the severity of Plaintiff s 24 In sum, because the ALJ failed to give proper consideration to the 25 opinion of Plaintiff s treating physician, the step two determination is 26 not supported by substantial evidence. See Smolen, 80 F.3d at 1290; 27 Webb, 433 F.3d at 687. 28 // 6 1 IV. Conclusion and Order 2 This case is reversed and remanded so that the ALJ may further 3 evaluate the treating physician evidence and make appropriate findings. 4 See Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003) (where 5 there 6 determination of disability can be made, and it is not clear from the 7 record that the ALJ would be required to find the claimant disabled if 8 all the evidence were properly evaluated, remand is appropriate). are outstanding issues that must be resolved before 9 10 DATED: September 12, 2012 11 12 13 ______________________________ MARC L. GOLDMAN United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 a
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