Randy James Perez v. Carolyn W Colvin, No. 2:2015cv09279 - Document 27 (C.D. Cal. 2017)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. the Agency's decision is reversed and the action is remanded for further consideration consistent with this Memorandum Opinion and Order. (See document for further details.) (sbou)
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Randy James Perez v. Carolyn W Colvin Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 RANDY JAMES PEREZ, 11 12 13 14 15 Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 15-9279-PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION 19 Plaintiff appeals a decision by Defendant Social Security 20 Administration (“the Agency”), denying his claim for Supplemental 21 Security Income (“SSI”). 22 (“ALJ”) erred when he: (1) rejected the treating doctor’s opinion; 23 (2) determined that Plaintiff and his mother were not credible; and 24 (3) found that Plaintiff could work. 25 the ALJ’s decision is reversed and the case is remanded to the Agency 26 for further proceedings consistent with this opinion. He claims that the Administrative Law Judge For the reasons explained below, 27 28 Dockets.Justia.com 1 II. 2 SUMMARY OF PROCEEDINGS 3 In August 2011, Plaintiff applied for SSI, alleging that he had 4 been unable to work since December 31, 2002, due to chronic lower back 5 pain, Hepatitis C, hypertension, and insomnia. 6 (“AR”) 226-34, 257.) 7 on reconsideration. 8 granted a hearing before an ALJ. 9 he appeared with counsel and testified at the hearing. The Agency denied the applications initially and (AR 87, 97.) 10 69.) 11 application for benefits. 12 (Administrative Record Plaintiff then requested and was (AR 130-31.) On February 27, 2013, (AR 48-50, 52- On March 19, 2013, the ALJ issued a decision denying his (AR 98-112.) Plaintiff appealed the ALJ’s decision to the Appeals Council, 13 which vacated the decision and remanded the case to the ALJ to further 14 evaluate Plaintiff’s mental impairment, reconsider the testimony of 15 Plaintiff’s mother, further evaluate the doctors’ opinions after 16 updating the record, develop the record regarding Plaintiff’s past 17 work, and, if warranted, obtain testimony from a vocational expert. 18 (AR 114-16.) 19 On March 25, 2015, Plaintiff appeared with counsel at a second 20 hearing before a different ALJ. 21 ALJ issued a decision denying Plaintiff’s application for benefits. 22 (AR 12-28.) 23 review. (AR 31-42.) On June 26, 2015, the Plaintiff appealed to the Appeals Council, which denied (AR 1-6.) This action followed. 24 III. 25 ANALYSIS 26 27 28 A. The Residual Functional Capacity Determination The ALJ found that Plaintiff had the residual functional capacity to perform light work if it involved only occasional bending and 2 1 stooping. (AR 18.) Plaintiff objects to this finding. He contends 2 that, in order to reach this conclusion, the ALJ improperly rejected 3 the opinion of one of Plaintiff’s treating doctors and discounted 4 Plaintiff’s and his mother’s testimony without cause. 5 9-22, 37-43.) 6 to the Agency for further consideration. (Joint Stip. at For the following reasons, the Court remands this issue 7 1. 8 In January 2013, Plaintiff’s treating doctor, Dr. William 9 The Treating Doctor’s Opinion Edelstein, diagnosed Plaintiff with chronic lower back pain and 10 concluded that he could occasionally lift, carry, or pull less than 11 ten pounds; stand or walk for a total of less than two hours in an 12 eight-hour day; and sit continuously for less than six hours. 13 380.) 14 that he would miss 60 to 120 hours of work per month. 15 According to Dr. Edelstein, Plaintiff’s condition had persisted for 13 16 years. 17 (AR He also opined that Plaintiff could not reach repeatedly and (AR 380.) (AR 380.) Had the ALJ accepted Dr. Edelstein’s opinion, he would have had 18 to conclude that Plaintiff was not even capable of performing full- 19 time sedentary work. 20 because: (1) it was not supported by objective medical evidence; and 21 (2) it was undermined by the opinions of treating doctor John 22 Landsberg, consultative examiner Ursula Taylor, and two reviewing 23 doctors. 24 perform light work. 25 discounting Dr. Edelstein’s opinion. 26 (AR 21.) But the ALJ rejected Dr. Edelstein’s opinion Ultimately, the ALJ concluded that Plaintiff could Plaintiff argues that the ALJ erred in It is the province of the ALJ to resolve conflicts in the medical 27 evidence. 28 There are three types of doctors that supply that evidence: treating Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 3 1 doctors, examining doctors, and reviewing doctors. 2 equal, treating doctors’ opinions are entitled to the most weight 3 because they are hired to cure and have more opportunity to know and 4 observe the patient. 5 list, followed by reviewing doctors. 6 821, 830-31 (9th Cir. 1995). 7 merely accept the opinion of any doctor and, where an opinion is 8 contradicted, may reject it for specific and legitimate reasons that 9 are supported by substantial evidence in the record. 10 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 Id. at 830. In rejecting Dr. Edelstein’s opinion, the ALJ noted that, though 11 a treating doctor’s opinion is normally entitled to significant 12 weight, that rule is only applicable if the opinion is supported by 13 objective medical evidence. 14 that, “such is not the case regarding the assessment of Dr. Edelstein 15 of extreme physical limitations of 13 years duration (Exhibit 8F).” 16 (AR 21.) 17 to support such a restrictive residual functional capacity . . . .” 18 (AR 21.) 19 (AR 21.) He then went on to explain In the ALJ’s view, there was “no objective medical evidence Plaintiff complains that the ALJ’s finding that Dr. Edelstein’s 20 opinion was not supported by the objective medical evidence was too 21 general to be upheld on appeal. 22 disagrees in part. 23 dating back to 2000 to support Dr. Edelstein’s opinion that 24 Plaintiff’s condition persisted for 13 years. 25 records from the Santa Barbara County Health Department, where Dr. 26 Edelstein worked and where he treated Plaintiff, only go back to 2010. 27 (AR 337-41, 377-429.) The Court agrees in part and Clearly there is no objective medical evidence In fact, the medical Thus, the ALJ’s finding that there was no 28 4 1 objective medical evidence to support Dr. Edelstein’s 2013 opinion 2 that Plaintiff’s condition had persisted for 13 years is affirmed. 3 The ALJ’s companion finding that there was no objective medical 4 evidence to support Dr. Edelstein’s restrictive residual functional 5 capacity finding is not. 6 record that supports Dr. Edelstein’s view, for example, his positive 7 findings in straight leg testing, and some that undermines it. 8 ALJ was tasked with sorting through the evidence and explaining which 9 evidence undermined Dr. Edelstein’s opinion and which evidence There is some objective evidence in the The 10 supported it. 11 v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“Merely to state that a 12 medical opinion is not supported by enough objective findings ‘does 13 not achieve the level of specificity our prior cases have required, 14 even when the objective factors are listed seriatim.’”) (quoting 15 Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988)). 16 His failure to do so amounts to error. See Rodriguez The ALJ also questioned Dr. Edelstein’s opinion because it was 17 inconsistent with the opinions of treating doctor Landsberg (who took 18 over Plaintiff’s treatment in February 2013), examining doctor Ursula 19 Taylor, and the reviewing doctors. 20 valid reason for questioning a treating doctor’s opinion. 21 F.3d at 1043 (upholding ALJ’s rejection of treating doctor’s opinion 22 based in part on the fact that it was contradicted by opinions of 23 nontreating doctors). 24 the five doctors involved in this case, only one, Dr. Edelstein, 25 concluded that Plaintiff was so severely disabled that his physical 26 limitations precluded him from performing even sedentary work. 27 380.) 28 least 20 pounds, walk for six hours in an eight-hour day, and sit for Generally speaking, this is a Andrews, 53 And it is supported in part by the record. Of (AR Three of the other four opined that Plaintiff could lift at 5 1 at least six hours, which translates into being able to perform light 2 work. 3 Plaintiff’s residual functional capacity. 4 prescribing Plaintiff the narcotic Norco soon after he started 5 treating Plaintiff, which could be interpreted as an indication of his 6 view on the severity of Plaintiff’s back pain. 7 (AR 83-84, 93, 360.) Dr. Landsberg did not offer an opinion on He did, however, stop The ALJ also explained that he relied on these other doctors 8 based on the “length, nature and extent of the treating relationship, 9 supportability with medical signs and laboratory findings, consistency 10 with the record, and area of specialization.” (AR 21.) The ALJ 11 failed, however, to explain what he meant by this. 12 Edelstein clearly had the longest relationship with Plaintiff. 13 treated Plaintiff from September 2010 to February 2013. 14 the examining doctor, only saw him once and that was for an 15 examination, not treatment. 16 all. 17 months. 18 opinion based on the length and nature of the treatment, the ALJ erred 19 here, too, because Dr. Edelstein treated Plaintiff for the longest 20 and, therefore, that would have been a reason to rely on his opinion. 21 The ALJ also questioned Dr. Edelstein’s opinion because the 22 minimal objective medical evidence there was--an “MRI indicating 23 minimal to mild degenerative changes to the lumbosacral spine”--did 24 not support his view that Plaintiff was disabled. 25 does not find this reason persuasive. 26 these findings establish that Plaintiff’s back condition is not 27 painful or debilitating. 28 ALJ’s alone. For example, Dr. He Dr. Taylor, The reviewing doctors never saw him at Dr. Landsberg’s treatment notes cover a period of about six Thus, to the extent that the ALJ discounted Dr. Edelstein’s (AR 21.) The Court None of the doctors opined that It appears that this conclusion was the 6 1 Though the Court considers this a close call, it concludes that 2 remand is warranted for the ALJ to take another look at this issue. 3 In doing so, he should explain what medical evidence undermines Dr. 4 Edelstein’s opinion and what the basis for that view is. 5 if the apparently unremarkable MRI findings establish that Plaintiff’s 6 back condition is not as severe as Plaintiff and Dr. Edelstein claim, 7 then the ALJ should point to evidence in the record that substantiates 8 that finding. 9 medical records and consider them in determining whether Plaintiff is 10 For example, The ALJ should also obtain Plaintiff’s most recent disabled. 11 2. 12 The ALJ found that Plaintiff was not credible. The ALJ’s Credibility Determination 13 that the ALJ erred in doing so. 14 Plaintiff argues finding is remanded for further consideration. 15 For the following reasons, this ALJs are tasked with judging a claimant’s credibility. Andrews, 16 53 F.3d at 1039. 17 techniques. 18 Where there is no evidence of malingering, however, they can only 19 reject a claimant’s testimony for specific, clear, and convincing 20 reasons that are supported by substantial evidence in the record. 21 Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014). 22 In doing so, they can rely on ordinary credibility Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Plaintiff suffers from sciatica and testified that he has back 23 pain every day. 24 hours at a time and can walk for only about five minutes before he has 25 to rest. 26 when his back goes out once or twice a month, which causes pain that 27 lasts up to two weeks. 28 go out when he is washing dishes or reaching to put a dish into the (AR 35.) (AR 40.) He claims that he can sit for only two He alleges that he uses a cane and a back brace (AR 41.) According to Plaintiff, his back can 7 1 cupboard. (AR 41.) As a result of his ailments and his insomnia, he 2 only sleeps three to four hours a night. (AR 42.) 3 The ALJ found that Plaintiff’s sciatica could reasonably be 4 expected to cause his alleged symptoms but that his testimony that his 5 symptoms were debilitating was not entirely credible because: (1) his 6 ability to perform daily activities was inconsistent with his alleged 7 limitations; (2) the objective medical evidence did not support his 8 alleged degree of back pain; (3) he did not comply with treatment; and 9 (4) his treatment was conservative. (AR 20, 21.) These are valid 10 reasons for questioning a claimant’s testimony. 11 495 F.3d 625, 639 (9th Cir. 2007) (holding ALJ can consider claimant’s 12 ability to perform daily activities in assessing credibility); Rollins 13 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (noting ALJ can 14 consider objective medical evidence in determining credibility of 15 claimant); Orn, 495 F.3d at 638 (explaining ALJ may consider 16 claimant’s failure to follow prescribed course of treatment in 17 evaluating testimony about severity of pain); Meanel v. Apfel, 172 18 F.3d 1111, 1114 (9th Cir. 1999) (holding inconsistency between 19 allegations of severe pain and conservative treatment was proper basis 20 for discounting credibility). 21 them are supported by substantial evidence in the record. 22 See Orn v. Astrue, As explained below, however, not all of The ALJ questioned Plaintiff’s claim that he could only walk for 23 five minutes because his purported daily activities--including 24 cleaning and vacuuming--“required more than [five] minutes of 25 walking.” 26 finding here. 27 intervals over the course of a day, particularly, where, as here, he 28 was not working and was spending his days at home. (AR 20-21.) The Court does not agree with the ALJ’s Plaintiff could have performed these chores in short 8 1 The government points out that Plaintiff told Dr. Edelstein that 2 he was biking and walking seven days a week for exercise. 3 Clearly, this level of daily activity is inconsistent with Plaintiff’s 4 testimony that he suffered from debilitating pain that rendered him 5 incapable of working. 6 Plaintiff’s credibility and, as such, the Court is not at liberty to 7 do so here. 8 (“[W]e cannot affirm the decision of an agency on a ground that the 9 agency did not invoke in making its decision.”) (citation omitted). 10 (AR 389.) But the ALJ did not rely on this when analyzing See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) The ALJ relied on the absence of objective medical evidence 11 supporting Plaintiff’s alleged pain to find that Plaintiff was not 12 credible. 13 specify what evidence was missing and how the lack of it undermined 14 Plaintiff’s testimony. 15 benign findings in the MRI, the Court is not convinced, absent expert 16 testimony, that that establishes that Plaintiff was not experiencing 17 pain and limitation. 18 objective evidence that was there, for example, the positive straight 19 leg raising test results from Dr. Edelstein, did not support 20 Plaintiff’s testimony. 21 The problem with this finding is that the ALJ failed to To the extent that he was referring to the The ALJ also failed to explain how the other The ALJ also questioned Plaintiff’s sincerity because he failed 22 to follow medical advice. 23 this finding. 24 to listen when he counseled him to start using different sleep 25 medication. 26 Plaintiff’s pain and suffering was not as severe as he claimed. 27 Plaintiff’s resistance here involved his insomnia medication, not his 28 pain medication. There is evidence in the record to support Dr. Landsberg noted that Plaintiff essentially refused (AR 422, 426-27.) This could be construed as a sign that And, though the insomnia and the pain from the 9 But 1 sciatica may have been related, the Court cannot conclude that 2 Plaintiff’s failure to take his insomnia medication proves that his 3 statements about his back pain are exaggerated. 4 The ALJ pointed to the fact that Plaintiff received conservative 5 treatment for what Plaintiff claimed was a debilitating back ailment. 6 The Court sides with the ALJ here. 7 sparse. 8 Barbara Health Care Center from 2010 to 2013 in which Plaintiff went 9 to see Dr. Edelstein and complained about a bad back, insomnia, high 10 blood pressure, and anxiety and Dr. Edelstein prescribed medications 11 to treat his conditions. 12 the fact that Plaintiff claims that he has been disabled since 2002. 13 There were no procedures performed on his back. 14 any injections. 15 reported to Dr. Edelstein on an infrequent basis and received 16 medication. 17 Plaintiff’s back pain was a narcotic, Norco, there is no indication in 18 Dr. Edelstein’s records that anything more was ever done to treat 19 Plaintiff’s condition. 20 Plaintiff’s treatment, he stopped prescribing Norco. 21 The medical record in this case is It consists of a handful of treatment notes from Santa There are no records before 2010, despite He did not receive He did not receive any physical therapy. He simply Though the medication Dr. Edelstein prescribed for Further, soon after Dr. Landsberg took over Plaintiff purportedly used a back brace and a cane to treat his 22 back pain. 23 prescribed and, even assuming that they were, the Court would 24 characterize them as conservative treatment, also.1 But there is no evidence to indicate that either were 25 26 27 28 1 It appears that Plaintiff was referred to a pain specialist by Dr. Landsberg (AR 418) but there are no records from the pain specialist. 10 1 In the end, some of the reasons cited by the ALJ are supported by 2 the record and some are not. Because the Court is not convinced that 3 the reasons that stand are enough to reject Plaintiff’s testimony, the 4 issue is remanded to the ALJ for further consideration. 5 v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) 6 (holding error is harmless only if substantial evidence remains to 7 support the ALJ’s credibility finding).2 See Carmickle 8 3. 9 Plaintiff’s mother submitted a written report, explaining what Lay Witness Testimony 10 she perceived were Plaintiff’s limitations. 11 discussed her report but failed to explain whether he was accepting it 12 or rejecting it. 13 rejected parts of her “testimony” because his findings relating to 14 what Plaintiff could do are inconsistent with what Plaintiff’s mother 15 reported that he could do. 16 properly address the mother’s testimony but argues that, because her 17 testimony was so closely aligned with Plaintiff’s, the ALJ’s reasons 18 for rejecting Plaintiff’s testimony can and should be applied to the 19 mother’s. 20 (AR 275-78.) The ALJ It seems fair to conclude, however, that the ALJ The Agency concedes that the ALJ failed to The Court has remanded the issue of Plaintiff’s credibility to 21 the ALJ. 22 ALJ’s rejection of the mother’s testimony for the same reasons it is 23 upholding the rejection of Plaintiff’s testimony necessarily fails. Thus, the Agency’s argument that the Court should uphold the 24 25 26 27 28 2 The ALJ also seems to conclude that Plaintiff’s mother’s testimony undermined Plaintiff’s testimony. (AR 21.) The Court does not see much difference between what Plaintiff reported and what his mother reported. (AR 263-70, 275-82.) In fact, their written reports, which were signed on the same day, closely mirror each other. (AR 263-70, 275-82.) 11 1 On remand, the ALJ should consider the mother’s input as well and 2 explain what weight, if any, he gives it and why. 3 Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (“[L]ay witness testimony 4 as to a claimant’s symptoms . . . is competent evidence” which the 5 Secretary must take into account.) (emphasis in original) (citations 6 omitted). 7 B. 8 9 See Nguyen v. Plaintiff’s Past Relevant Work Plaintiff contends that the ALJ erred in concluding that he could perform his past work as a medical file clerk because the job is 10 defined as light work and Plaintiff is only capable of performing 11 sedentary work. 12 above, the ALJ will have to take another look at Plaintiff’s residual 13 functional capacity and then determine whether he can perform his past 14 work. 15 C. 16 On remand, after addressing the issues outlined The ALJ’s Alternative Finding at Step Five The ALJ also made an alternative finding that Plaintiff could 17 perform other jobs existing in the national economy, such as cashier 18 II and marker (retail). 19 these jobs involve frequent reaching, handling, and fingering and, 20 therefore, are beyond his ability to do sedentary work. 21 at 51-52.) 22 (AR 22-23.) Plaintiff argues that both of (Joint Stip. The Court does not find Plaintiff’s argument persuasive. The ALJ 23 did not limit Plaintiff to frequent reaching, handling, and fingering, 24 nor did he limit him to sedentary work. 25 makes a different residual functional capacity determination on 26 remand, he will have to to reconsider Step Four and, if warranted, 27 Step Five, as well. 28 12 That being said, if the ALJ 1 IV. 2 CONCLUSION 3 For the reasons set forth above, the Agency’s decision is 4 reversed and the action is remanded for further consideration 5 consistent with this Memorandum Opinion and Order.3 6 IT IS SO ORDERED. 7 DATED: February 8, 2017. 8 9 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 S:\PJW\Cases-Social Security\PEREZ, R 9279\Memo Opinion.wpd 16 3 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff has requested that the case be remanded for an award of benefits. (Joint Stip. at 53.) The Court recognizes that it has the authority to do so but finds that such relief is not warranted here. 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.”). Plaintiff purports to have suffered from a debilitating back condition for more than 13 years and yet submits only a handful of medical records, which consists of treatment notes from to 2010-2013. He alleged in a written report in September 2011 and in his testimony in February 2013 that he is practically incapacitated, being barely capable of sitting for more than two hours and claimed to spend his days doing very little. (AR 263-70.) Yet, he told his doctor in October 2012 that he was exercising seven days a week, riding a bike and walking. (AR 389.) In the end, the Court concludes that the medical records clearly do not support Plaintiff’s claim that he has been disabled since 2002. The only issue for remand is whether the few records that are there from 2010 forward are enough to support a claim for disability for some period. Further administrative proceedings are necessary before that question can be answered. 13
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