Robert Duran v. Carolyn W Colvin, No. 2:2015cv02801 - Document 22 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The ALJ's decision is reversed and the case is remanded for further consideration consistent with this Memorandum Opinion and Order. (See document for further details.) (sbou)
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Robert Duran v. Carolyn W Colvin Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ROBERT DURAN, 11 12 13 14 15 Plaintiff, v. CAROLYN W. COLVIN, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 15-2801-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration (“the Agency”), denying his application for Disability 20 Insurance benefits (“DIB”). 21 Judge (“ALJ”) erred when he rejected the opinion of the agreed medical 22 examiner in Plaintiff’s worker’s compensation case. 23 reasons, the Court concludes the ALJ erred and remands the case to the 24 Agency for further proceedings. 25 26 II. He claims that the Administrative Law For the following SUMMARY OF PROCEEDINGS In March 2012, Plaintiff applied for DIB, alleging that he had 27 been disabled since February 2010, due to herniated discs, carpal 28 tunnel syndrome, hypertension, and foot and hip problems. Dockets.Justia.com 1 (Administrative Record (“AR”) 96, 110.) 2 application initially and on reconsideration. 3 requested and was granted a hearing before an ALJ. In June 2013, he 4 appeared with counsel at the hearing. In August 2013, 5 the ALJ issued a decision denying benefits. 6 appealed to the Appeals Council, which denied review. 7 then commenced the instant action. 8 9 III. A. 10 The Agency denied his Plaintiff then (AR 57-75.) (AR 13-20.) Plaintiff (AR 1-8.) He ANALYSIS The Agreed Medical Examiner’s Opinion In February 2010, Plaintiff was injured after his truck was rear- 11 ended. 12 Israel Rottermann, the agreed medical examiner in Plaintiff’s workers’ 13 compensation case. 14 complaints of pain and observed that he was wearing a knee brace. 15 356, 360.) 16 bone spur formation in Plaintiff’s cervical spine and AC joint, 17 narrowing of the L5-S1 disc, and degenerative changes of the knee. 18 (AR 363-64.) 19 and shoulder strain; bilateral knee complaints with torn meniscus; 20 improving bursitis of the hip; and tendinitis of the left elbow. 21 366.) 22 that surgery be performed on Plaintiff’s shoulders and knees. 23 366-67.) 24 (AR 357.) In May 2011, he was examined by orthopedic surgeon (AR 356-68.) Dr. Rottermann noted Plaintiff’s (AR X-rays taken at the time of the examination showed some Dr. Rottermann diagnosed a history of lumbar, cervical, (AR He recommended that additional MRIs be taken and, if indicated, (AR Six months later, in November 2011, Dr. Rottermann examined 25 Plaintiff again. 26 to experience pain, headaches, and depression. 27 taken in September 2011 revealed rotator cuff tendinopathy and a 28 partial tear of the ACL in both knees; an EMG and nerve conduction (AR 345-50.) Plaintiff reported that he continued 2 (AR 345-46.) MRIs 1 study from that month showed L5 radiculopathy. 2 Rottermann recommended pain management and epidural injections for 3 Plaintiff’s spine and cortisone injections for his shoulders. 4 349.) 5 (AR 346, 348.) Dr. (AR In March 2012, Dr. Rottermann examined Plaintiff a third time. 6 (AR 333-39.) 7 recommended a knee arthroscopy and that Plaintiff had undergone 8 additional MRIs and EMGs that showed the presence of carpal tunnel 9 syndrome. He noted that treating surgeon Dr. Rick Pospisil had (AR 334.) Dr. Rottermann recommended continuing pain 10 management, including epidurals, bilateral knee surgery, and carpal 11 tunnel release. 12 (AR 337.) In August 2012, internist Rocely Ella-Tamayo examined Plaintiff. 13 (AR 257-61.) 14 257.) 15 irritable during the evaluation.” 16 was slow but normal and observed that he did not use an assistive 17 device to ambulate. 18 that it was painful to flex his back and wrist and move his knees and 19 seemed to have difficulty in getting on and off the examination table. 20 (AR 260-61.) 21 credibility, she evidently did not believe him as she did not credit 22 any of his complaints. 23 50 pounds occasionally and 25 pounds frequently, could stand and walk 24 for up to six hours in an eight-hour workday, and would have no other 25 functional limitations. 26 She did not review any of his medical records. (AR Dr. Ella-Tamayo noted that Plaintiff was “very rude and very (AR 260.) (AR 257.) She found that his gait She reported that Plaintiff alleged Although she did not make a finding about Plaintiff’s She found that he could lift and carry up to (AR 261.) In December 2012, Dr. Rottermann saw Plaintiff for an “orthopedic 27 agreed medical reevaluation.” 28 anxiety, high blood pressure, stomach problems, and pain in his spine (AR 276-88.) 3 Plaintiff complained of 1 (that was aggravated by activity), stomach, knees, and hips. 2 277.) 3 surgery because of concerns about his heart.1 4 that Plaintiff had tenderness, tightness, and discomfort in his 5 cervical spine and a limited range of motion in his cervical spine, 6 shoulders, and lumbar spine. 7 Plaintiff’s wrists and hands were positive for Phalen’s test, 8 indicating that he had carpal tunnel syndrome. 9 (AR Dr. Rottermann noted that Plaintiff had elected not to have (AR 280-81.) (AR 278.) He found He also found that (AR 280.) Dr. Rottermann concluded that Plaintiff would not be able to 10 return to his past work as a driver and would be restricted to “semi- 11 sedentary type work,” with no prolonged standing or walking; no “heavy 12 lifting,” squatting, or overhead activities; and no repetitive 13 bending, stooping, turning, tilting of the head and neck, power 14 gripping, or grasping.2 15 (AR 286.) The ALJ did not adopt the limitations found by Dr. Rottermann 16 but, instead, accorded the “most” weight to the opinion of Dr. Ella- 17 Tamayo. 18 could perform a full range of medium work without limitation, 19 including his past work as a truck driver. 20 takes exception to this finding. (AR 18.) Accordingly, the ALJ determined that Plaintiff (AR 17, 19.) Plaintiff 21 22 23 24 25 26 27 28 1 In February 2012, Dr. Pospisil noted that Plaintiff had unstable blood pressure and, thus, required authorization to see a cardiologist before undergoing surgery. (AR 152.) 2 Plaintiff observes that the Workers Compensation term “semisedentary” means that an individual is restricted to working no more than 50% of the time in a standing or walking position, “with a minimum of demands for physical effort whether standing, walking, or sitting.” (Joint Stip. at 9 n.6, citing Vasque v. Barnhart, 2002 WL 1880743, at *7 (N.D. Cal. Aug. 13, 2002).) 4 1 It is the province of the ALJ to resolve conflicts in the medical 2 evidence. Andrews v Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 3 There are three types of doctors that supply that evidence: treating 4 doctors, examining doctors, and reviewing doctors. 5 equal, treating doctors’ opinions are entitled to the most weight 6 because they are hired to cure and have more opportunity to know and 7 observe the patient. 8 list, followed by reviewing doctors. 9 821, 830-31 (9th Cir. 1995). Id. at 1041. All things being Examining doctors are next on the See Lester v. Chater, 81 F.3d ALJs, however, are not required to 10 merely accept the opinion of any doctor and, where the opinion is 11 contradicted, may reject it for specific and legitimate reasons that 12 are supported by substantial evidence in the record. 13 Id. at 830. The ALJ adopted Dr. Ella-Tamayo’s opinion on the ground that it 14 was consistent with the “overall objective medical signs and 15 laboratory findings of a longitudinal nature[.]” 16 found that the evidence indicated Plaintiff’s condition had improved 17 between May 2011 and the date of decision, contrary to Dr. 18 Rottermann’s December 2012 opinion. 19 that “the various Worker’s Compensation ‘disability’ assessments and 20 forms all lack estimation of onset and careful detail to the most 21 recent laboratory and test results and findings[] to satisfy the 22 durational requirements” for a disability finding. 23 following reasons, the Court concludes that the ALJ erred in doing so. 24 As an initial matter, the Court notes the state agency reviewer’s 25 assessment that Plaintiff’s case was “very difficult . . . in that the 26 bulk of the retrospective record consists of conflicting medical legal 27 assessments and conflicting imaging studies.” 28 of-the-mill case presenting conflicting evidence, an ALJ is entitled 5 (AR 16-19.) (AR 18.) The ALJ The ALJ also found (AR 18.) (AR 269.) For the In the run- 1 to rely on an examining doctor’s opinion that is based on independent 2 clinical findings, such as that of Dr. Ella-Tamayo. 3 F.3d at 1041. 4 rationale for relying on the consulting examiner’s opinion was flawed 5 and mandates reversal. 6 See Andrews, 53 The Court concludes here, however, that the ALJ’s First, all things being equal, the ALJ should have given more 7 weight to Dr. Rottermann’s opinion, not Dr. Ella-Tamayo’s. 8 Rottermann examined Plaintiff on four occasions over 19 months and 9 thus had more familiarity with the longitudinal record than Dr. Ella- Dr. 10 Tamayo, who examined Plaintiff once. 11 an orthopedic surgeon, which presumably is the relevant specialty for 12 Plaintiff’s spine, shoulder, elbow, and knee complaints, whereas Dr. 13 Ella-Tamayo is an internist. 14 any of Plaintiff’s prior medical records and did not articulate any 15 basis for dismissing Plaintiff’s complaints of pain and limitation. 16 Furthermore, Dr. Rottermann is Moreover, Dr. Ella-Tamayo did not review Further, the ALJ’s reasons for rejecting Dr. Rottermann’s opinion 17 do not stand up to scrutiny. 18 opinion based on the fact that his “assessments and forms all lack 19 estimation of onset and careful detail to the most recent laboratory 20 and test results and findings[.]” 21 regulations do not require that a medical opinion include estimation 22 of onset to be considered valid. 23 May 2011 initial evaluation appears to contain both an estimation of 24 onset and references to then-current EMG, nerve conduction, MRI, and 25 X-ray results. 26 opinion, which the ALJ did rely on, did not address the date of onset 27 or reference laboratory or test results. 28 Rottermann’s opinion failed to address the date of onset and The ALJ questioned Dr. Rottermann’s (AR 357, 363-66.) (AR 18.) This was error. The Even if they did, Dr. Rottermann’s In contrast, Dr. Ella-Tamayo’s 6 Assuming arguendo that Dr. 1 overlooked recent test results, it was error for the ALJ to reject his 2 opinion on grounds that apply equally, if not more so, to the 3 examining internist’s opinion, which he did adopt. 4 it appropriate to discount medical opinions that lack consideration of 5 the onset date and fail to reference laboratory tests, he must apply 6 the rule to all similarly situated doctors in the case. 7 If the ALJ finds The ALJ found that Plaintiff’s injuries from his accident had 8 improved based in part on his finding that the “DDS physicians” had 9 opined that they had. (AR 17, 19.) In fact, it was not a physician, 10 but an agency analyst who reached that conclusion. (AR 269-70.) The 11 ALJ’s reliance on the analyst’s opinion was in error. 12 although the ALJ correctly pointed to signs of medical improvement in 13 the record, such as a June 2011 examination by Dr. Aaron Coppelson-- 14 who provided an electrodiagnostic consultation and found no focal 15 paresthesias or significant gait dysfunction (AR 473)--he neglected to 16 address other evidence that tended to show that there was less 17 improvement, such as reports from pain management specialist Nabil 18 Dahi. 19 finding on each occasion that Plaintiff had limited range of motion 20 and tenderness in his spine. 21 failure to address the evidence that undermined his decision was 22 error. 23 (holding ALJ’s rejection of doctor’s opinion not supported by 24 substantial evidence where ALJ selectively relied on records 25 indicating improvement and ignored others that showed “continued, Furthermore, Dr. Dahi examined Plaintiff in June, July, and November 2011, (AR 212-13, 219, 232-33.) The ALJ’s See Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) 26 27 28 7 1 severe impairment”). For these reasons, the case is remanded for 2 further consideration.3 3 4 IV. CONCLUSION For these reasons, the ALJ’s decision is reversed and the case is 5 remanded for further consideration consistent with this Memorandum 6 Opinion and Order. 7 IT IS SO ORDERED. 8 Dated: September 13, 2016. 9 10 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 S:\PJW\Cases-Social Security\DURAN, R 2801\memo opinion and order.wpd 23 24 25 26 27 28 3 Plaintiff has requested that the case be remanded for an award of benefits. The Court recognizes that it has the authority to do so but finds that such relief is not warranted because it is not clear that Plaintiff is disabled. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015), as amended (Feb. 5, 2016) (“Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits.”). 8
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