Noemi Gomez Tobias v. Nancy A. Berryhill, No. 2:2017cv01892 - Document 23 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. The decision of the Social Security Commissioner is REVERSED and the action is REMANDED for further proceedings. (See document for further details.) (sbou)
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Noemi Gomez Tobias v. Nancy A. Berryhill Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 NOEMI GOMEZ TOBIAS, Plaintiff, 12 v. 13 14 15 16 17 NANCY A. BERRYHILL, Deputy Commissioner of Operations, performing duties and functions not reserved to the Commissioner of Social Security, 18 Defendant. 19 ) Case No. CV 17-01892-DFM ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) ) ) ) ) ) ) 20 Plaintiff Noemi Gomez Tobias (“Plaintiff”) appeals from the final 21 22 decision of the Social Security Commissioner denying her applications for 23 Social Security Disability Insurance Benefits (“DIB”) and Supplemental 24 Security Income (“SSI”). For the reasons discussed below, the Commissioner’s 25 decision is reversed and this matter is remanded for further proceedings. 26 /// 27 /// 28 /// Dockets.Justia.com 1 I. 2 BACKGROUND 3 In June 2013, Plaintiff filed applications for DIB and SSI alleging 4 disability beginning on November 20, 2012. See Administrative Record 5 (“AR”) 238-46. Her applications were denied. See AR 85-90. Plaintiff 6 requested and received a hearing before an administrative law judge (“ALJ”), 7 during which the ALJ heard testimony by Plaintiff, who was represented by 8 counsel, and a vocational expert (“VE”). See AR 25-40. 9 On October 7, 2015, the ALJ issued an unfavorable decision. See AR 7- 10 24. The ALJ found that Plaintiff had the severe impairment of degenerative 11 disc disease of the lumbar and cervical spine, which did not meet or equal the 12 severity of a listed impairment. See AR 13-14. The ALJ assigned Plaintiff the 13 residual functional capacity (“RFC”) to perform light work, as defined in 20 14 C.F.R. §§ 404.1567(b) and 416.967(b), except that she could stand and walk for 15 six hours in an eight-hour day; sit for six hours in an eight-hour day; and 16 occasionally climb, balance, stoop, crouch, and crawl, with occasional 17 overhead reaching. See AR 15. The ALJ found, based on the VE’s testimony, 18 that Plaintiff could work as an inspector, production assembler, and shoe 19 packer, and she therefore was not disabled. See AR 19-20. 20 The Appeals Council denied review of the ALJ’s decision, which 21 became the final decision of the Commissioner. See AR 1-4. Plaintiff then 22 sought review by this Court. See Dkt. 1. 23 II. 24 DISCUSSION 25 The parties dispute whether the ALJ properly considered Plaintiff’s 26 symptom testimony. See Joint Stipulation (Dkt. 22; “JS”) at 4. The parties also 27 dispute whether the ALJ properly weighed the medical evidence from three 28 doctors. See id. 2 1 A. Subjective Symptom Testimony 2 1. Applicable Law 3 The court engages in a two-step analysis to review the ALJ’s evaluation 4 of the plaintiff’s symptom testimony. Trevizo v. Berryhill, 871 F.3d 664, 678 5 (9th Cir. 2017). First, the ALJ must determine whether the plaintiff has 6 presented objective medical evidence of an underlying impairment that could 7 reasonably be expected to produce the symptoms alleged. Id. If the plaintiff 8 meets the first step and there is no affirmative evidence of malingering, the 9 ALJ must provide specific, clear and convincing reasons for discrediting the 10 plaintiff’s complaints. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th 11 Cir. 2006). “General findings are insufficient; rather, the ALJ must identify 12 what testimony is not credible and what evidence undermines the [plaintiff’s] 13 complaints.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 14 amended) (citation omitted). If the ALJ’s credibility finding is supported by 15 substantial evidence in the record, the reviewing court “may not engage in 16 second[ ]guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 17 2. Analysis 18 At her hearing, Plaintiff testified that she could not stand or walk for 19 more than 20 to 30 minutes before needing to sit down, and that she could not 20 sit down for the same period of time before needing to stand up. See AR 31. 21 She stopped working after injuring her lower back working as a forklift 22 operator, and received $1,500 in worker’s compensation. See AR 32-33. She 23 took Norco for the pain, which did not remove the pain completely; there was 24 nothing else that she could do to relieve the pain, and there was no position of 25 the body (including lying down) that relieved the pain. See AR 34-35. She 26 rated her current pain as an eight out of 10, with a 10 being so severe that she 27 had to go to an emergency room right away. See AR 35. Due to the pain, she 28 3 1 could not do “much of anything.” See AR 36. She lived by herself and “tried” 2 to perform chores around the house. See AR 37. 3 The ALJ gave specific, clear and convincing reasons for discrediting this 4 testimony, to the extent it conflicted with the RFC. First, the ALJ discussed 5 the objective medical evidence that did not support Plaintiff’s claims of 6 disabling pain. See AR 15-17. “Although lack of medical evidence cannot form 7 the sole basis for discounting pain testimony, it is a factor that the ALJ can 8 consider in [her] credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 681 9 (9th Cir. 2005). The x-rays taken at the time of Plaintiff’s 2012 injury were 10 normal. See AR 350. X-rays and MRIs of Plaintiff’s lumbar spine from 11 December 2012, January 2013, June 2013, and March 2014 revealed mild to 12 moderate findings. See AR 354, 369, 561, 575. On June 9, 2015, Dr. Harlan 13 Bleecker performed a complete consultative examination of Plaintiff which 14 was “generally unremarkable.” See AR 452-56. These records and findings 15 support the ALJ’s conclusion that, while Plaintiff suffers from back pain, her 16 statements about her symptoms were not entirely credible. 17 Second, the ALJ permissibly discounted Plaintiff’s credibility because 18 her daily activities were inconsistent with her alleged limitations. See AR 17. 19 Plaintiff reported in August 2013 that she prepares meals; does household 20 chores such as inside cleaning, watering plants, vacuuming, laundry, and 21 gardening; and spends time with others by visiting family members and eating 22 out. See AR 279, 281 (Plaintiff’s Function Report). Plaintiff also cares for 23 young children at home without assistance, and can drive and do errands like 24 going to the grocery store and post office without assistance. See AR 290, 300. 25 Where, as here, a “claimant engages in daily activities inconsistent with the 26 alleged symptoms,” an ALJ may discredit her testimony of totally disabling 27 impairment. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citation 28 omitted). 4 1 Next, the ALJ permissively discounted Plaintiff’s symptom testimony 2 because her treatment involved conservative treatment. See AR 18. There was 3 no evidence that Plaintiff used a cane or other assistive device, and her only 4 treatment was taking pain medication. See AR 298. “[E]vidence of 5 ‘conservative treatment’ is sufficient to discount a claimant’s testimony 6 regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th 7 Cir. 2007) (citation omitted); see also Fair v. Bowen, 885 F.2d 597, 604 (9th 8 Cir. 1989) (finding that claimant’s allegations of persistent, severe pain and 9 discomfort were belied by “minimal conservative treatment”). 10 Notwithstanding Plaintiff’s argument to the contrary, the ALJ did not err in 11 concluding that relatively conservative forms of treatment like Norco belied 12 Plaintiff’s allegation of disabling back pain. See Medel v. Colvin, No. 13-2052, 13 2014 WL 6065898, at *8 (C.D. Cal. Nov. 13, 2014) (considering Vicodin part 14 of a conservative treatment routine); Gallo v. Comm’r of Soc. Sec. Admin., 15 No. 07-01561, 2010 WL 545848, at *8 (N.D. Cal. Feb. 12, 2010) (describing 16 epidural steroid injections as “conservative treatment”), aff’d, 449 F. App’x 17 648 (9th Cir. 2011). The ALJ thus validly relied on Plaintiff’s conservative 18 treatment to discount the credibility of her symptom testimony. 19 Finally, the ALJ properly weighed Plaintiff’s “significant periods of time 20 . . . during which the claimant has not taken any medication” for her pain 21 against her testimony. See AR 18. The failure to seek or follow a prescribed 22 course of treatment can be a factor in weighing a claimant’s credibility. See 23 Molina, 674 F.3d at 1112 (“We have long held that, in assessing a claimant’s 24 credibility, the ALJ may properly rely on ‘unexplained or inadequately 25 explained failure to seek treatment or to follow a prescribed course of 26 treatment.’” (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 27 2008))). In January 2013, Plaintiff reported to a doctor that she was not 28 currently taking her medications. See AR 358. She reported the same thing in 5 1 May 2013. See AR 362. Plaintiff argues that she made these statements in the 2 context of seeking epidural steroid injections, which the insurance carrier 3 denied; she does not contest or explain, however, her decision not to take pain 4 medication during that time. See JS at 7. 5 Having relied on the objective medical evidence, Plaintiff’s daily 6 activities, Plaintiff’s conservative treatment history, and Plaintiff’s failure to 7 follow a prescribed course of treatment, the ALJ provided sufficiently specific, 8 clear and convincing reasons for discounting Plaintiff’s subjective complaints 9 about the severity of her back pain. 10 B. Medical Opinions 11 1. Law 12 Three types of physicians may offer opinions in Social Security cases: 13 those who treated the plaintiff, those who examined but did not treat the 14 plaintiff, and those who did neither. See 20 C.F.R. §§ 404.1527(c), 416.927(c); 15 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended Apr. 9, 1996).1 16 A treating physician’s opinion is generally entitled to more weight than that of 17 an examining physician, which is generally entitled to more weight than that of 18 a nonexamining physician. Lester, 81 F.3d at 830. When a treating physician’s 19 opinion is uncontroverted by another doctor, it may be rejected only for “clear 20 21 22 23 24 25 26 27 1 Social Security Regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. Where, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”). Accordingly, the Court applies the versions of 20 C.F.R. §§ 404.1527 and 416.927 that were in effect at the time of the ALJ’s October 2015 decision. 28 6 1 and convincing reasons.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 2 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830-31). Where such an 3 opinion is contradicted, the ALJ may reject it for “specific and legitimate 4 reasons that are supported by substantial evidence in the record.” Id. (citations 5 omitted). 6 2. Relevant Doctor Opinions 7 Dr. Alex Etemad completed an initial orthopedic evaluation on 8 December 20, 2012. See AR 351. After physically examining Plaintiff, he 9 diagnosed her with lumbar degenerative joint and disc disease and lumbar 10 neuritis/radiculitis. See AR 365. Dr. Etemad opined several times between 11 January and July 2013 that Plaintiff was temporarily impaired, was precluded 12 from lifting over 5 pounds, should not climb, sit, or stand for over 30 minutes, 13 and was to perform only sedentary work. See AR 360, 364, 370, 378, 380, 382, 14 385. 15 Dr. Kambiz Nourian prepared a primary treating physician’s legal 16 evaluation dated October 17, 2013, reflecting decreased range of motion of the 17 cervical spine, tenderness to palpation in the lateral trapezius, positive spasm 18 bilaterally, positive cervical distraction, foramina compression, and shoulder 19 depression, positive Kemps test, positive straight leg raising test, and decreased 20 range of motion of the lumbar spine. See AR 476. Dr. Nourian indicated that 21 Plaintiff should never crawl or overhead lift; could occasionally pinch, reach 22 above the shoulder, squat, kneel, crawl, lift at shoulder level, climb stairs or 23 ladders; and could frequently grasp, fine and gross motor coordination, walk, 24 push, pull, sit, and stand. See AR 502. Dr. Nourian opined that Plaintiff could 25 lift and carry no more than 5 pounds. See AR 504. 26 Dr. George S. McCan prepared a qualified medical evaluation dated 27 November 3, 2014, indicating diagnoses of lumbar strain, thoracic strain, and 28 lumbar degenerative disc disease. See AR 571. Dr. McCan opined that 7 1 Plaintiff should not lift, pull, or push more than five pounds and should not 2 frequently bend or stoop. See AR 573. 3 Dr. Harlan Bleecker conducted a complete consultative evaluation of 4 Plaintiff on June 9, 2015. See AR 452-56. Plaintiff complained to him of back 5 pain, and Dr. Bleecker found decreased range of motion of the neck and back 6 on physical exam. See AR 453-54. The physical examination was otherwise 7 generally unremarkable, and Dr. Bleecker diagnosed her with degenerative 8 disc disease and arthritis of the cervical and lumbar spine. See AR 456. Dr. 9 Bleecker opined that Plaintiff: could lift and carry 20 pounds occasionally and 10 10 pounds frequently; sit for 30 to 40 minutes; sit for six to eight hours in an 11 eight-hour workday2; stand and walk for up to six to eight hours in an eight- 12 hour day; did not require use of a cane; could occasionally reach overhead 13 with either upper extremity; and could frequently reach, handle, finger, push, 14 and pull. Id. 15 3. Analysis 16 The ALJ gave great weight to Dr. Bleecker’s opinion and “little, if any” 17 weight to the opinions Drs. McCan, Nourian, and Etemad. AR 18. The ALJ 18 accordingly needed to offer specific and legitimate reasons for rejecting the 19 latter doctors’ opinions. 20 The ALJ reasoned that the doctors’ medical records were prepared in the 21 context of the adversarial workers’ compensation claim system, and that 22 physicians retained in this context are often biased and serve as an advocate for 23 the claimant. See AR 18. The ALJ also noted that the definition of disability is 24 not the same in the workers’ compensation context as it is in a Social Security 25 disability case. See id. And, finally, the ALJ noted that whether the claimant is 26 27 28 2 The ALJ noted and discounted Dr. Bleecker’s internally inconsistent opinions regarding Plaintiff’s sitting abilities. See AR 18. 8 1 2 “disabled” is a determination reserved for the Commissioner. See id. None of these reasons is a specific and legitimate reason on this record. 3 An ALJ is not entitled to reject a medical opinion based on “the purpose for 4 which medical reports are obtained.” Batson v. Comm’r of Soc. Sec. Admin., 5 359 F.3d 1190, 1200 n.5 (9th Cir. 2004) (quoting Lester, 81 F.3d at 830, and 6 rejecting plaintiff’s contention that doctor hired by workers’ compensation 7 insurance company may have been biased in evaluation); see also Heun- 8 Davidson v. Berryhill, No. 16-1569, 2017 WL 5054657, at *6 (C.D. Cal. Nov. 9 1, 2017) (noting that ALJs may not disregard medical opinions simply because 10 they were elicited in workers’ compensation proceeding). Likewise, an ALJ 11 may not reject the report of a treating physician merely because a workers’ 12 compensation determination is not controlling on the ultimate issue of 13 disability. “That workers’ compensation determinations are not controlling on 14 the ultimate issue of disability does not mean that an ALJ can ignore the report 15 of the physician making the determination.” Franco v. Colvin, No. 12-01267, 16 2014 WL 790912, at *18 (E.D. Cal. Feb. 26, 2014); see also Campos v. Colvin, 17 No. 14-00802, 2015 WL 5687640, at *9 (E.D. Cal. Sept. 25, 2015) (same). 18 Finally, the ALJ erred by rejecting the doctors’ conclusions on the basis that 19 disability is a determination left solely to the Commissioner. To be sure, a 20 doctor’s opinion on the ultimate disability determination is not entitled to any 21 special significance. See SSR 96-5p (providing that “treating source opinions 22 on issues reserved to the Commissioner are never entitled to controlling weight 23 or special significance”). But “merely because a treating or examining doctor 24 opines that a plaintiff is disabled is not a permissible reason to reject that 25 opinion.” Daniel v. Berryhill, No. 16-0651, 2017 WL 4082368, at *3 (C.D. 26 Cal. Sept. 13, 2017) Moreover, all three doctors offered more than just a 27 conclusory opinion that Plaintiff was disabled; all three opined that Plaintiff 28 had functional limitations that the ALJ did not address. 9 The ALJ therefore gave no specific and legitimate reasons for 1 2 discounting these three doctors’ opinions. An ALJ’s error is harmless where it 3 is inconsequential to the ultimate nondisability determination. Molina, 674 4 F.3d at 1115. Defendant argues that their opinions are inconsistent with 5 Plaintiff’s activities and other evidence of record. See JS at 27. Even were the 6 Court inclined to agree, the ALJ did not state this as a reason for rejecting their 7 opinions. The Court therefore cannot conclude that the ALJ’s error was 8 inconsequential to the ultimate disability determination. See Bray v. Comm’r 9 of Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) (“Long-standing 10 principles of administrative law require us to review the ALJ’s decision based 11 on the reasoning and actual findings offered by the ALJ—not post hoc 12 rationalizations that attempt to intuit what the adjudicator may have been 13 thinking.”). 14 C. Remand for Further Proceedings Is Appropriate 15 Whether to remand for further proceedings is within this Court’s 16 discretion. See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as 17 amended). Where no useful purpose would be served by further administrative 18 proceedings, or where the record has been fully developed, it is appropriate to 19 exercise this discretion to direct an immediate award of benefits. See id. at 20 1179 (noting that “the decision of whether to remand for further proceedings 21 turns upon the likely utility of such proceedings”); Benecke v. Barnhart, 379 22 F.3d 587, 593 (9th Cir. 2004). 23 A remand is appropriate, however, where there are outstanding issues 24 that must be resolved before a determination of disability can be made and it is 25 not clear from the record that the ALJ would be required to find the claimant 26 disabled if all the evidence were properly evaluated. See Bunnell v. Barnhart, 27 336 F.3d 1112, 1115-16 (9th Cir. 2003); see also Garrison, 759 F.3d at 1021 28 (explaining that courts have “flexibility to remand for further proceedings 10 1 when the record as a whole creates serious doubt as to whether the claimant is, 2 in fact, disabled within the meaning of the Social Security Act.”). Here, 3 remand is appropriate for the ALJ to properly evaluate the physicians’ 4 opinions and conduct such other proceedings as are warranted. 5 III. 6 CONCLUSION 7 For the reasons stated above, the decision of the Social Security 8 Commissioner is REVERSED and the action is REMANDED for further 9 proceedings. 10 11 Dated: August 16, 2018 ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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