Theresa Moran v. Carolyn W. Colvin, No. 2:2015cv09407 - Document 17 (C.D. Cal. 2016)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is VACATED, and the matter is REMANDED, without benefits, for further proceedings. (mz)

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Theresa Moran v. Carolyn W. Colvin Doc. 17 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 Theresa Moran, 13 Plaintiff, v. 14 15 16 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 17 ) No. CV 15-09407-SJO(AS) ) ) MEMORANDUM OPINION AND ) ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY 20 ORDERED that this matter is remanded 21 for further administrative action consistent with this Opinion. 22 23 I. PROCEEDINGS 24 25 On December 4, 2015, Plaintiff filed a Complaint seeking review 26 of the Commissioner’s denial of Plaintiff’s application for a period 27 of disability and disability insurance benefits. (Docket Entry No 28 1 Dockets.Justia.com 1 1). On April 15, 2016, Defendant filed an Answer to the Complaint, 2 and the Certified Administrative Record (“A.R.”) (Docket Entry Nos. 3 12-13). 4 States Magistrate Judge. 5 filed a Joint Stipulation (“Joint Stip.”) on July 27, 2016, setting 6 forth their respective positions on Plaintiff’s claims. 7 Entry No. 16). The parties have consented to proceed before a United (Docket Entry Nos. 9-10). The parties (Docket 8 9 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 10 11 Plaintiff, formerly employed as a clerk in a Wonder and Weber’s 12 Bread bakery outlet (A.R. 56), asserts disability beginning March 1, 13 2009, based on the alleged physical impairments of degenerative disc 14 disease, 15 (“CTS”). 16 Administrative Law Judge (“ALJ”), Sally Reason, examined the record 17 and heard testimony from Plaintiff and vocational expert (“VE”), 18 Kelly Bartlett. 19 Plaintiff benefits in a written decision. osteoporosis, (A.R. fibromyalgia, 53-55; Joint (A.R. 56-78). Stip. and carpel 5). On tunnel March syndrome 19, 2014, On May 19, 2014, the ALJ denied (A.R. 18-31). 20 The ALJ applied the five-step process in evaluating Plaintiff’s 21 22 case. (A.R. at 18-27). 23 Plaintiff had not engaged in substantial gainful activity after the 24 alleged onset date of March 1, 2009 and that Plaintiff’s date last 25 insured (DLI) was December 31, 2009. (A.R. 21-22). 26 the the 27 degenerative disc disease of the lumbar spine, osteoporosis, and ALJ found that At step one, the ALJ determined that Plaintiff has 28 2 severe At step two, impairments of 1 “possibly 2 Plaintiff did not have any upper extremity limitations prior to 3 Plaintiff’s DLI. 4 ALJ 5 function limitations” of Plaintiff’s upper extremities. 6 The 7 electrodiagnostic study in 2009, suggesting bilateral CTS, Plaintiff 8 also had negative Tinel’s and Phalen’s tests bilaterally conducted 9 around fibromyalgia.” found no ALJ 23). The ALJ also found that (A.R. 22-23). In making this determination, the “objective noted the (A.R. that same time (A.R. confirmation although and evidence there is of related (A.R. 23). evidence did not allege CTS as At step three, the ALJ 23). any a of an disabling 10 condition. found that 11 Plaintiff’s impairments did not meet or equal a listing found in 20 12 C.F.R. Part 404, Subpart P, Appendix 1. (A.R. 23). 13 14 Before proceeding to step four, the ALJ found that Plaintiff 15 had the residual functional capacity (“RFC”)1 to perform light work 16 in that she can lift and carry 20 pounds occasionally and 10 pounds 17 frequently; sit for 6 hours in an 8-hour workday; and stand and walk 18 6 hours total in an 8-hour workday. (A.R. 24, 28). 19 In 20 making finding, ALJ 23 RFC questionnaire that Dr. Yoon filled out in March 2012 asserts 24 that 25 limitations in manipulation or use of the upper extremities. 27 to lifting 1 5 Dr. Yoon, opinion addressed Plaintiff’s upper extremity limitations. limited physician, favorable 22 is treating rejected evidence Plaintiff Plaintiff’s The 21 26 from this which (A.R. 25-26). pounds with A marked (A.R. A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 28 3 1 438-39). 2 April 2013 opinion letter, which stated similar findings, to the 3 extent it assessed Plaintiff’s disabled status through December 31, 4 2009, finding that because Dr. Yoon had not examined Plaintiff until 5 November 23, 2009, “neither this examination nor his or other source 6 evidence 7 particularly impressive.”2 The ALJ rejected Dr. Yoon’s March 2012 questionnaire and surrounding the period ending December 31, 2009, is (A.R. 26). 8 9 At step four, the ALJ determined that Plaintiff was not able 10 to perform her past relevant work because she was limited to light 11 work. 12 to perform jobs consistent with her age, education, and medical 13 limitations existing in significant numbers in the national economy. 14 (A.R. 15 requirements of retail cashier (Dictionary of Occupational Titles 16 (“DOT”) No. 211.462-014) and telephone solicitor (DOT 299.357.014), 17 with transferrable skills in customer service, giving information, 18 and retail sales. 19 Plaintiff was not disabled. (A.R. 26). 26-27). At step five, the ALJ found Plaintiff was able In particular, (A.R. 27, 233). Plaintiff could perform the Accordingly, the ALJ found that 20 Plaintiff requested that the Appeals Council review the ALJ’s 21 22 decision. 23 1-5). (A.R. 1). The request was denied on May 19, 2014. (A.R. The ALJ’s decision then became the final decision of the 24 2 25 26 The “source evidence” the ALJ referred to is likely the Tinel’s and Phalen’s tests and electrodiagnostic tests conducted by Plaintiff’s previous physician, Dr. Huang, on August 31 and September 14, 2009, respectively. (A.R. 1192, 1205-07). 27 28 4 1 Commissioner, allowing this Court to review the decision. 2 U.S.C. §§ 405(g), 1383(c). See 42 3 4 III. STANDARD OF REVIEW 5 6 This court reviews the Administration’s decision to determine 7 if the decision is free of legal error and supported by substantial 8 evidence. 9 F.3d 1157, 1161 (9th Cir. 2012). See Brewes v. Commissioner of Social Sec. Admin., 682 “Substantial evidence” is more 10 than a mere scintilla, but less than a preponderance. Garrison v. 11 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). 12 substantial evidence supports a finding, “a court must consider the 13 record as a whole, weighing both evidence that supports and evidence 14 that detracts from the [Commissioner’s] conclusion.” 15 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). 16 the evidence can reasonably support either affirming or reversing 17 the ALJ’s conclusion, [a court] may not substitute [its] judgment 18 for that of the ALJ.” 19 882 (9th Cir. 2006). To determine whether Aukland v. As a result, “[i]f Robbins v. Soc. Sec. Admin., 466 F.3d 880, 20 21 IV. PLAINTIFF’S CONTENTION 22 23 Plaintiff alleges that, in assessing her residual functional 24 capacity, the ALJ failed to properly consider the medical evidence 25 contained 26 objective findings of other treating sources. 27 12-13). in the opinions of her 28 5 treating physician and the (Joint Stip. 4-17, 1 V. DISCUSSION 2 3 After reviewing the record, the Court finds that the ALJ failed 4 to make an RFC determination that accounted for the combined effects 5 of all of Plaintiff’s impairments when the ALJ rejected Dr. Yoon’s 6 opinion on Plaintiff’s upper extremity functional limitations. 7 Court therefore remands for further consideration. The 8 A. 9 The ALJ Erred in Assessing the Opinion of Plaintiff’s treating Physician. 10 11 12 Although a treating physician’s opinion is generally afforded 13 the greatest weight in disability cases, it is not binding on an ALJ 14 with respect to the existence of an impairment or the ultimate 15 determination of disability. 16 359 F.3d 1190, 1195 (9th Cir. 2004); Magallanes v. Bowen, 812 F.2d 17 747, 18 physician’s opinion depends on whether it is supported by sufficient 19 medical data and is consistent with other evidence in the record. 20 20 C.F.R. § 416.927(b)-(d). 21 medical opinions of treating physicians where the opinion is well- 22 supported and not inconsistent with the other substantial evidence 23 in the record. 24 Cal. 2012); Social Security Ruling (“SSR”) 96-2p. 25 uncontradicted opinion of a treating physician, the ALJ must give 26 “clear 27 evidence.” 751 and (9th Cir. Batson v. Comm'r of Soc. Sec. Admin., 1989). The weight given to a treating Controlling weight must be given to Palomares v. Astrue, 887 F. Supp. 2d 906, 914 (N.D. convincing reasons that are supported To reject the by substantial Ghanim v. Colvin, 763 F.3d 1154, 1160–61 (9th Cir. 2014) 28 6 1 citing Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005); 2 Thomas v. Barnhart, 278 F.3d 947 (9th Cir. 2002). 3 doctor's opinion is contradicted by another doctor, the ALJ must 4 provide “specific and legitimate reasons” for rejecting the treating 5 physician’s opinion. 6 2007); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). If the treating Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 7 Plaintiff 8 9 convincing asserts reasons that for ALJ rejecting the not provide opinion of Stip. Dr. 5-7, and Yoon, 11 Plaintiff contends that Dr. Yoon had a “solid basis” for diagnosing 12 Plaintiff with CTS during their first visit. 13 had the opportunity to examine Plaintiff on November 23, 2009, and 14 in making his diagnosis, relied on objective evidence — the positive 15 electrodiagnostic test conducted by Dr. Huang in September 2009. 16 (Joint Stip. 13). 17 did 18 limitations by November 2009, Plaintiff claims that Dr. Yoon had 19 “personal knowledge” of Plaintiff’s conditions during her November 20 2009 visit, which was sufficient time to form a medical opinion 21 regarding Plaintiff’s upper extremity limitations. a (Joint clear Plaintiff’s have physician. did 10 not treating the (A.R. 6). 12-13). Dr. Yoon In response to the ALJ’s assertion that Dr. Yoon “longitudinal picture” of Plaintiff’s functional (Joint stip. 7). 22 23 Defendant contends that the ALJ properly rejected Dr. Yoon’s 24 opinion because (1) Dr. Yoon’s notes provide little in the way of 25 significant 26 Plaintiff’s condition prior to her DLI;” (2) Dr. Yoon referred to 27 many findings conditions, or a including “detailed some 28 7 longitudinal that were in picture of remission, 1 demonstrating a lack of knowledge of Plaintiff’s actual health; (3) 2 Dr. 3 findings because it was listed in the chief complaint (i.e. “C.C.”) 4 section of his notes, which indicates that Plaintiff self-reported 5 the condition as opposed to it being the result of an examination; 6 (4) Dr. Yoon’s diagnosis further lacks objective support because it 7 conflicts with the negative Tinel’s and Phalen’s tests and lacks 8 objective 9 limitations; and (5) the only objective evidence of upper extremity 10 Yoon’s apparent diagnosis confirmation was evidence limitations occurred after the DLI. not of the any result of related objective functional (Joint Stip. 8-12). 11 12 The ALJ’s assertion that “Dr. Yoon did not examine the claimant 13 until November 2009” and that his examination was “not particularly 14 impressive” is not a clear and convincing reason to reject Dr. 15 Yoon’s opinion, especially when viewed in the context of Dr. Huang’s 16 earlier CTS diagnosis and treatment. 17 observation of a claimant is a good reason to give less weight to a 18 physician’s opinion, it is not a reason to discredit the opinion 19 altogether. 20 as amended (Apr. 9, 1996). 21 during her November 2009 visit and concluded in his March 2012 22 assessment and April 2013 letter, that Plaintiff had upper extremity 23 limitations “probably from the time I first started to see her on 24 11/23/09” and was thereby precluded from lifting and carrying up to 25 five pounds, carrying five to ten pounds, and “grasping, turning, 26 and twisting objects, using her hands for fine manipulations, and 27 using her arms for reaching.” (A.R. 26). While limited See Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995), Dr. Yoon examined Plaintiff for CTS (A.R. 438-441, 736, 865). 28 8 1 Additionally, Dr. Yoon’s opinion is consistent with the 2 diagnosis 3 previous treating physician. 4 despite its probative value. 5 Cir. 2000) (evidence that does not support the decision may not be 6 ignored, especially when the evidence is probative). 7 diagnosed Plaintiff with bilateral CTS on September 14, 2009, after 8 completing the aforementioned electrodiagnostic test. 9 Prior to the diagnosis, Dr. Huang did conduct a negative Phalen’s and Tinel’s treatment on out by Dr. Huang, Plaintiff’s The ALJ ignores Dr. Huang’s diagnosis, Godbey v. Apfel, 238 F.3d 803 (7th 11 diagnosed 12 results, which constitute substantial evidence. Roberts v. Shalala, 13 66 14 1995)(objective testing in support of diagnosis meets substantial 15 evidence standard). 16 giving a 5 out of 10 pain-score. 17 prescribed Plaintiff Vicodin to manage the pain, issued bilateral 18 wrist 19 October 14, 2009. 20 evidence, the ALJ improperly relied on the negative Phalen’s and 21 Tinel’s tests to reject Dr. Yoon’s opinion regarding Plaintiff’s 22 upper extremity limitations. 179, splints, 184 and with 31, 2009, bilateral (9th Cir. CTS (A.R. (A.R. 1205). and Plaintiff August Dr. Huang 10 F.3d test carried based 1995), as 1192), on but still objective amended test (Oct. 23, Plaintiff suffered from hand numbness and pain, conducted a (A.R. 1205, 1208). follow-up visit (A.R. 1208, 1213, 1231). for Dr. Huang the CTS on In light of this 23 24 Defendant claims that Dr. Yoon’s diagnosis is not credible 25 because the CTS diagnosis was listed in the chief complaint section 26 of 27 reported this diagnosis during the first visit, thus, limiting its his Doctor’s notes, which may 28 9 indicate that Plaintiff self- 1 objective weight. (Joint Stip. 11). 2 Dr. the 3 electrodiagnostic test and examination. 4 record is unclear on this matter in part because Dr. Yoon’s records 5 failed to include the method of examination and the source of the 6 CTS 7 useful to determine whether Dr. Yoon’s opinions were informed by 8 objective evidence during the November 2009 visit. 9 Yoon’s Yoon based diagnosis.3 CTS (See diagnosis was A.R. based Yet, Plaintiff asserts that diagnosis 865). on on the September 2009 (Joint Stip. 12-13). Greater subjective clarification factors, may The be Even if Dr. the ALJ was 10 required to give his opinion some weight. Lester, 81 F.3d at 832–33 11 (“Commissioner is required to give weight not only to the treating 12 physician's clinical findings and interpretation of test results, 13 but also to his subjective judgments.”). 14 Moreover, 15 the finding 18 Dr. Huang made a final diagnosis based on objective evidence and 19 carried out a treatment plan. 20 ALJ 21 explaining why Dr. Huang’s diagnosis did not support Dr. Yoon’s 22 opinions. 23 conclusions between doctors provides reason to credit the opinions 24 of both doctors as opposed to reject). (A.R. 26). “not evidence” impressive” is not supported by substantial evidence. any was source 17 provide limitations “other regarding to extremity that 16 failed upper ALJ’s particularly As discussed, (A.R. 11921, 1205, 1208-1213). justification for rejecting this The or Lester, 81 F.3d at 832. (A similarity of 25 26 27 3 Dr. Yoon’s handwriting is mostly illegible regarding the CTS examination itself. (See A.R. 865). 28 10 1 The ALJ also eludes that because there is no objective evidence 2 of Plaintiff’s related functional limitations, Dr. Yoon’s opinion 3 should not be considered in the RFC assessment. 4 However, 5 splints 6 limitations regarding Plaintiff’s ability to use her hands. 7 1205-1213). 8 limited Plaintiff’s upper extremity functions, “when considered with 9 limitations there and is pain evidence that medications, Dr. which Huang (A.R. 23, 26). prescribed demonstrates some bilateral objective (A.R. Furthermore, while CTS alone may not have severely or restrictions due to other impairments,” such as 10 degenerative disc disease and possible fibromyalgia, a CTS diagnosis 11 may “be critical to the outcome of a claim.” 12 Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). 13 opined that Plaintiff’s pain in her joints and fatigue preclude 14 Plaintiff from using her upper extremities. 15 erred in not considering this this limitation in her assessment of 16 Plaintiff’s RFC. Carmickle v. Comm'r, Dr. Yoon (A.R. 736). The ALJ 17 The 18 ALJ also noted that the CTS diagnosis should not be 19 considered in the RFC assessment because Plaintiff did not allege 20 the condition in her application or on appeal. 21 unreasonable to infer solely from Plaintiff’s failure to mention a 22 CTS diagnosis in her benefits application that the condition did not 23 hinder 24 Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (ALJ erred 25 in 26 imposed 27 injury in his benefits application). not Plaintiff’s considering on claimant ability the to use functional solely because 28 11 her (A.R. 23). upper extremities. limitations claimant It is an failed injured to See thumb list the 1 B. Remand Is Warranted 2 3 The decision whether to remand for further proceedings or order 4 an immediate award of benefits Harman v. Apfel, 5 discretion. 6 2000). 7 administrative 8 developed, it is appropriate to exercise this discretion to direct 9 an immediate award of benefits. Where no useful proceedings, is 211 within F.3d purpose or the 1172, would where the be district 1175-78 served record court’s (9th by has Cir. further been fully Id. at 1179 (“[T]he decision of 10 whether to remand for further proceedings turns upon the likely 11 utility of such proceedings.”). 12 the case suggest that further administrative review could remedy the 13 Commissioner’s errors, remand is appropriate. 14 F.3d 881, 888 (9th Cir. 2011); Harman, 211 F.3d at 1179-81. However, where the circumstances of McLeod v. Astrue, 640 15 16 Here, the Court remands because the ALJ’s analysis did not 17 properly 18 regarding plaintiff’s upper extremity limitations and their effect 19 on Plaintiff’s functional limitations prior to the DLI. 20 does not establish that the ALJ would necessarily be required to 21 find 22 limitations were considered in the RFC assessment; (2) Dr. Yoon’s 23 CTS diagnosis was given some weight; and (3) Dr. Huang’s concurring 24 diagnosis was addressed. address Plaintiff Dr. Huang disabled and if Dr. (1) Yoon’s concurring Plaintiff’s upper diagnoses The record extremity Remand is therefore appropriate. 25 26 The Court has not reached issues not discussed supra except to 27 determine that reversal with a directive for the immediate payment 28 12 1 of benefits would be inappropriate at this time. 2 3 VI. CONCLUSION 4 5 For the foregoing reasons, the decision of the Administrative 6 Law Judge is VACATED, and the matter is REMANDED, without benefits, 7 for 8 405(g). further proceedings pursuant to Sentence 4 of 42 U.S.C. 9 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 13 14 Dated: October 3, 2016 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 §

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