Keith Masato Tamashiro v. Carolyn W Colvin, No. 2:2012cv10286 - Document 29 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 KEITH MASATO TAMASHIRO, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) ) COMMISSIONER OF SOCIAL SECURITY,1 ) Defendant. ) ____________________________________) NO. CV 12-10286-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 26 Plaintiff filed a complaint on December 3, 2012, seeking review of the Commissioner s denial of benefits. The parties consented to 27 1 28 Carolyn W. Colvin, who became Acting Commissioner of Social Security as of February 14, 2013, is hereby substituted as Defendant in this matter. See Fed. R. Civ. P. 25(d)(1); 42 U.S.C. § 405(g). 1 proceed before a United States Magistrate Judge on January 4, 2013. 2 Plaintiff filed a motion for summary judgment on June 20, 2013. 3 Defendant filed a motion for summary judgment on August 19, 2013. 4 Court has taken the motions under submission without oral argument. 5 See L.R. 7-15; Order, filed December 6, 2012. The 6 7 BACKGROUND 8 9 On June 3, 2010, Plaintiff filed an application for disability 10 insurance benefits (Administrative Record ( A.R. ) 114-15). Plaintiff 11 asserts disability since January 31, 2006, based on alleged 12 subarachnoid hemorrhage, severe short term memory loss, double 13 vision, and artery pseudoaneurysm severe short term memory loss 14 (A.R. 114, 130). 15 Plaintiff suffers from severe late results of stroke, short term 16 memory loss, and borderline intellectual functioning (A.R. 28, 32, 34- 17 35). An Administrative Law Judge ( ALJ ) found that 18 19 The ALJ found that Plaintiff retains the residual functional 20 capacity to perform work at any exertion level, but limited to: 21 simple repetitive tasks, low stress work, no work requiring operation 22 of motor vehicles or working around machinery, or work at heights or 23 around bodies of water (A.R. 24). 24 vocational expert, the ALJ found that, with this capacity, Plaintiff 25 could not perform his past relevant work but could work as a hand 26 packager or sorter (A.R. 37-38 (adopting vocational expert s testimony 27 at A.R. 64-65)). 28 (A.R. 38). Relying on the testimony of a Accordingly, the ALJ found Plaintiff not disabled The Appeals Council denied review (A.R. 1-3). 2 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration s decision to determine if: (1) the Administration s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007). 9 relevant evidence as a reasonable mind might accept as adequate to See Carmickle v. Substantial evidence is such 10 support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 11 (1971) (citation and quotations omitted); see also Widmark v. 12 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). 13 14 DISCUSSION 15 16 Plaintiff contends, inter alia, that the ALJ erred in evaluating 17 the opinions of Plaintiff s treating physicians. 18 For the reasons discussed below, the Court agrees. 19 20 A. The Relevant Medical Record 21 22 As the ALJ acknowledged, the medical record reflects Plaintiff s 23 brain trauma, and is replete with documented treatment for 24 complaints regarding Plaintiff s memory loss. 25 A.R. 180-385, 387, 390, 392, 399, 624, 637-842, 943-44); see also A.R. 26 682 (neurological treatment note from April 2008 reporting that 27 cognition testing revealed impairment in multiple domains including 28 memory, language, visuospatial abilities, and executive function). 3 See A.R. 32, 34 (citing 1 Plaintiff was admitted to UCLA Health Systems for treatment on 2 February 2, 2006, following a subarachnoid hemorrhage that occurred on 3 January 31, 2006 (A.R. 357-59). 4 May 2, 2006, undergoing multiple operations to treat his condition. 5 Plaintiff then was discharged to a skilled nursing facility. 6 357-58. 7 in the skilled nursing facility. Plaintiff was hospitalized until See A.R. It is not clear from the record how long Plaintiff remained 8 9 The records also include references to Plaintiff having an 10 antalgic gait with some notation of loss of balance when heel to toe 11 walking on examination in November 2006, February 2007, May 2007, 12 January 2008. 13 (neurology treatment note from September 2008 reporting normal gait 14 but some difficulty with tandem gait), A.R. 667-68, 670-71, 673-74 15 (neurology treatment notes from February 2009, August 2009 and 16 February 2010 reporting loss of balance but normal gait), A.R. 895- 17 96 (treatment note from October 2010 reporting Plaintiff had a 18 wobbly gait and fell that morning, and on examination exhibited 19 unsteadiness walking, especially on heel and tandem walking, and 20 referring Plaintiff to neurology); but see A.R. 665, 680, 683, 686 21 (neurology treatment notes from December 2007, April 2008, June 2008 22 and June 2010 reporting normal casual gait). 23 neurological evaluation from January 2011 reported a normal casual 24 gait but a neurological examination significant for slight impaired 25 /// 26 /// 27 /// 28 /// See A.R. 388, 389, 391, 392; see also A.R. 677 4 A subsequent 1 short-term recall and diffuse hyperreflexia (A.R. 943-44).2 2 3 The record contains partial copies of forms submitted by 4 Plaintiff s treating physicians for Plaintiff s private disability 5 insurance (A.R. 400-09). 6 pages, date from approximately May 2006 through November 2008. 7 Available information from the forms is summarized as follows: These forms, which are missing multiple Id.3 8 9 In 2006, treating neurologist Paul Vespa reported on the earliest 10 form (which, as supplied, consists of only page 1 of a 4-page form) 11 that Plaintiff was not able to work starting on January 31, 2006, and 12 was then in the UCLA Neuroscience ICU due to a ruptured right 13 vertebral artery pseudoaneurysm, coma, and hydrocephalus as 14 shown by a cerebral angiogram (A.R. 400). 15 concerning any particular future limitations Dr. Vespa may have 16 assigned to Plaintiff at that time. 17 /// 18 /// There is no information 19 2 20 21 22 23 24 25 26 27 28 Hyperreflexia is defined as overactivity of the physiological reflexes. See Merriam-Webster Medical Dictionary entry for hyperreflexia, available online at http://www.merriam-webster.com/medical/hyperreflexia (last visited Sept. 18, 2013). 3 On August 4, 2010, the Administration requested that the insurance company provide copies of Plaintiff s medical records. The insurance company replied by letter dated August 23, 2010, indicating that the company did not possess any medical records for Plaintiff (A.R. 843-44). The partial insurance forms provided have a facsimile transmission date of September 1, 2010. See A.R. 400-09. There is no indication in the record that anyone requested from the physicians themselves the missing pages from the insurance forms (or the missing content of the physicians opinions). 5 1 In an October 2006 form (which, as supplied, consists of pages 1 2 and 3 of a 4-page form), treating psychiatrist Yong Lee reported that 3 Plaintiff had suffered a subarachnoid hemorrhage and had significant 4 short term memory loss (A.R. 403-04). 5 Plaintiff was status post craniotomy secondary to infection from a 6 previous craniotomy and had developed a seizure disorder (A.R. 403). 7 Plaintiff was taking anti-seizure medication (A.R. 403). 8 opined that Plaintiff would be unable to be left alone but could 9 complete dressing, grooming, bathing, toileting, and showering Since the last report, Dr. Lee 10 independently (A.R. 403). Dr. Lee indicated that Plaintiff then was 11 receiving acute brain injury rehabilitation, and could not return to 12 his usual job due to his short term memory loss (A.R. 404). 13 no further information concerning what other limitations, if any, Dr. 14 Lee may have assigned to Plaintiff at that time. There is 15 16 In a May 2007 form (which, as supplied, consists of pages 1 and 3 17 of a 4-page form), treating physical medicine and rehabilitation 18 doctor Vibhay Prasad reported that Plaintiff had poor attention and no 19 memory (A.R. 408-09). 20 seizure disorder and opined that Plaintiff could not drive, use power 21 equipment, or work at heights (A.R. 408). 22 Plaintiff was precluded from any jobs requiring memory (A.R. 409). 23 Plaintiff was undergoing cognitive rehabilitation and vocational 24 retraining (A.R. 409). 25 what other limitations, if any, Dr. Prasad may have assigned to 26 Plaintiff at that time. 27 /// 28 /// Dr. Prasad indicated that Plaintiff had a Dr. Prasad also opined that There is no further information concerning 6 1 Dr. Prasad provided another form in January 2008 with more detail 2 (the record includes pages 1, 2 and 3 of a 4-page form). See A.R. 3 405-07; see also A.R. 390-91 (treatment note from same date). 4 Prasad reported that objectively Plaintiff had mild left weakness, an 5 ataxic left leg, impaired attention, delayed processing speed, 6 impaired short term memory, and that subjectively Plaintiff had 7 forgetfulness, falling, and difficulty reading (A.R. 405). 8 was in cognitive rehabilitation (A.R. 405). 9 Plaintiff was unable to live independently because his memory and Dr. Plaintiff Dr. Prasad opined that 10 cognitive impairments make him unsafe, and that Plaintiff could not 11 drive or operate machinery (A.R. 405). 12 Plaintiff would have limitations standing, sitting, walking, bending, 13 stooping, lifting, and carrying because he looses [sic] his balance, 14 and limitations using his hands because his left side is mildly weak 15 (A.R. 406). 16 physical impairment indicating no limitation of functional 17 capacity; no restrictions (A.R. 406). 18 Plaintiff is too forgetful to work on projects without direct 19 supervision or to interact with clients, but could work in supervised 20 environments if he did not drive to work (A.R. 407). 21 not expect a change in Plaintiff s condition, explaining that no 22 further recovery was expected and Plaintiff s condition had reached a 23 plateau functionally (A.R. 407). Dr. Prasad indicated that Inexplicably, however, Dr. Prasad checked a box under Dr. Prasad opined that Dr. Prasad did 24 25 In a November 2008 form (which, as supplied, consists only of 26 pages 1 and 3 of a 4-page form), treating family medicine physician 27 Lawrence Hwang reported that Plaintiff had repeated seizures since the 28 most recent previous report (A.R. 401). 7 Plaintiff could not drive or 1 ride a bicycle (A.R. 401). Dr. Hwang opined that Plaintiff would be 2 limited from any jobs requiring long term memory or excessive 3 ambulation, but could work in a seated workplace (A.R. 402). 4 is no further information concerning what additional limitations, if 5 any, Dr. Hwang may have assigned to Plaintiff at that time. There 6 7 B. The ALJ s Decision 8 9 In finding Plaintiff not disabled, the ALJ rejected Dr. Vespa s 10 one-page opinion (A.R. 400) as assertedly: (1) conclusory; 11 (2) lacking explanation or any clinical or diagnostic findings; and 12 (3) inconsistent with other evidence of record (A.R. 35). 13 not mention any of the above-summarized treating physician opinions 14 from Dr. Lee, Dr. Prasad,4 or Dr. Hwang. The ALJ did See A.R. 35.5 15 16 C. Discussion 17 18 A treating physician s conclusions must be given substantial 19 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 20 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ( the ALJ must 21 give sufficient weight to the subjective aspects of a doctor s 22 opinion. . . . 23 treating physician ) (citation omitted); see also Orn v. Astrue, 495 This is especially true when the opinion is that of a 24 25 26 27 28 4 The ALJ did mention Dr. Prasad s records from 2006-07, which records predate the above-summarized opinions from Dr. Prasad (A.R. 33, 35). 5 From the ALJ s limited reference to the insurance form from Dr. Vespa (A.R. 35), it is not clear whether the ALJ was aware that the insurance forms provided were incomplete. 8 1 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference owed to 2 treating physician opinions). 3 opinions are contradicted,6 if the ALJ wishes to disregard the 4 opinion[s] of the treating physician he . . . must make findings 5 setting forth specific, legitimate reasons for doing so that are based 6 on substantial evidence in the record. 7 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); 8 see Rodriguez v. Bowen, 876 F.2d at 762 ( The ALJ may disregard the 9 treating physician s opinion, but only by setting forth specific, 10 legitimate reasons for doing so, and this decision must itself be 11 based on substantial evidence ) (citation and quotations omitted). Even where the treating physician s Winans v. Bowen, 853 F.2d 12 13 Furthermore, [t]he ALJ has a special duty to fully and fairly 14 develop the record and to assure that the claimant s interests are 15 considered. 16 counsel. 17 also Sims v. Apfel, 530 U.S. 103, 110-11 (2000) ( Social Security 18 proceedings are inquisitorial rather than adversarial. 19 ALJ s duty to investigate the facts and develop the arguments both for 20 and against granting benefits. . . . ). 21 ALJ rendered his decision, section 404.1512(e) of 20 C.F.R. provided 22 that the Administration will seek additional evidence or 23 clarification from your medical source when the report from your 24 medical source contains a conflict or ambiguity that must be resolved, This duty exists even when the claimant is represented by Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983); see It is the As effective at the time the 25 26 6 27 28 Rejection of an uncontradicted opinion of a treating physician requires a statement of clear and convincing reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 9 1 the report does not contain all of the necessary information, or does 2 not appear to be based on medically acceptable clinical and laboratory 3 diagnostic techniques. 4 through Mar. 25, 2012);7 see also Smolen v. Chater, 80 F.3d at 1288 5 ( If the ALJ thought he needed to know the basis of Dr. Hoeflich s 6 opinions in order to evaluate them, he had a duty to conduct an 7 appropriate inquiry, for example, by subpoenaing the physicians or 8 submitting further questions to them. 9 the hearing to augment the record ) (citations omitted). See 20 C.F.R. § 1512(e) (eff. June 13, 2011 He could also have continued The ALJ s 10 duty under former section 404.1512(e) is triggered when there is 11 ambiguous evidence or when the record is inadequate to allow for 12 proper evaluation of the evidence. 13 459-60 (9th Cir. 2001) (citation omitted). Mayes v. Massanari, 276 F.3d 453, 14 15 Here, the ALJ erred in failing to develop the record with respect 16 to the pages missing from each of the treating physician s opinions, 17 including the pages missing from Dr. Vespa s opinion. 18 404.1512(e) (2011). 19 opinions of Drs. Lee, Prasad, and Hwang, and in failing to state 20 specific, legitimate reasons for implicitly rejecting the portions 21 of those opinions that were inconsistent with the ALJ s decision. 22 Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007) ( Of 23 course, an ALJ cannot avoid these requirements [to state specific, 24 legitimate reasons] by not mentioning the treating physician s opinion 25 and making findings contrary to it. ); Salvadore v. Sullivan, 917 F.2d 26 13, 15 (9th Cir. 1990) (implicit rejection of treating physician s See 20 C.F.R. The ALJ also erred in failing to mention the 27 7 28 Paragraph (e) has since been deleted from this section. See 20 C.F.R. § 404.1512. 10 See 1 opinion cannot satisfy Administration s obligation to set forth 2 specific, legitimate reasons ). 3 4 The Court is unable to conclude that these errors were harmless. 5 The ALJ rejected Dr. Vespa s opinions, at least in part, based on a 6 perception that the opinions lacked explanation and support. 7 developed record might have provided sufficient explanation and 8 support. 9 limitations standing and walking (A.R. 402, 406). A more Both Drs. Prasad and Hwang opined that Plaintiff would have Dr. Prasad 10 attributed the limitations to balance problems, which are documented 11 in the record. 12 (Disability Report - Appeal form dated October 10, 2010, reporting 13 that Plaintiff had been unsteady with walking beginning in October 14 2010). 15 position. See, e.g., A.R. 391, 895-96; see also A.R. 162 Dr. Hwang opined that Plaintiff could work only from a seated Dr. Lee believed Plaintiff was unsafe to be left alone. 16 17 Defendant s Motion discusses the partial opinions of Drs. Lee, 18 Prasad, and Hwang, and argues reasons why the ALJ may have implicitly 19 accepted or rejected those opinions. 20 Even if the opinions in the record from these treating physicians were 21 complete (which they are not), the Court would be unable to affirm the 22 ALJ s decision on the basis of any of the reasons Defendant 23 hypothesizes. 24 2001) (court cannot affirm the decision of an agency on a ground that 25 the agency did not invoke in making its decision ). 26 /// 27 /// 28 /// See Defendant s Motion, pp. 3-5. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 11 1 Because the circumstances of this case suggest that further 2 administrative review could remedy the ALJ s errors, remand is 3 appropriate. 4 generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 5 administrative determination, the proper course is remand for 6 additional agency investigation or explanation, except in rare 7 circumstances).8 McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 8 9 CONCLUSION 10 11 For all of the foregoing reasons,9 Plaintiff s and Defendant s 12 motions for summary judgment are denied and this matter is remanded 13 for further administrative action consistent with this Opinion. 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. 16 17 DATED: September 24, 2013. 18 19 _______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 20 21 22 8 23 24 25 There are outstanding issues that must be resolved before a proper disability determination can be made in the present case. For at least this reason, the Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) does not compel a reversal for the immediate payment of benefits. 26 9 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 12
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