Andrew Estrada v. Michael J Astrue, No. 5:2008cv00446 - Document 17 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. For all the foregoing reasons, 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 ANDREW ESTRADA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) ) Defendant. ) ___________________________________) NO. ED CV 08-446-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 Plaintiff filed a complaint on April 11, 2008, seeking review 26 of the Commissioner s denial of benefits. The parties filed a consent 27 to proceed before a United States Magistrate Judge on August 14, 2008. 28 /// 1 Plaintiff filed a motion for summary judgment on September 16, 2 2008.1/ 3 2008. 4 argument. Defendant filed a motion for summary judgment on October 14, The Court has taken both motions under submission without oral See L.R. 7-15; Order, filed April 14, 2008. 5 6 BACKGROUND 7 8 9 Plaintiff asserts disability allegedly beginning July 4, 2002 (Administrative Record ( A.R. ) 224-29). A Certificate of 10 Disability, etc. from the Arrowhead Regional Medical Center, dated 11 March 17, 2005, states Plaintiff then was unable to perform work 12 because of chronic lower back pain (A.R. 222). 13 an illegible signature, likely that of a treating physician. 14 Statement of Provider, dated April 17, 2007, similarly claims 15 Plaintiff cannot work (A.R. 223). 16 illegible signature, likely that of a treating physician. This document bears Id. A This document also bears an Id. 17 18 The Administrative Law Judge ( ALJ ) found Plaintiff not 19 disabled (A.R. 10-17). The ALJ gave little weight to the 20 Certificate of Disability, etc. because it is expressed in a 21 checklist without explanation of the basis of the conclusions. 22 unsupported, brief and conclusory. 23 this assessment was rendered by an acceptable medical source (A.R. 24 15). 25 Provider (A.R. 10-17). It is Further, it is unclear whether The ALJ failed specifically to mention the Statement of The Appeals Council denied review (A.R. 3-5). 26 27 28 1/ Plaintiff s motion violates paragraph VI of this Court s Order, filed April 14, 2008. Counsel for Plaintiff shall heed Court orders in the future. 2 STANDARD OF REVIEW 1 2 Under 42 U.S.C. section 405(g), this Court reviews the 3 4 Commissioner s decision to determine if: (1) the Commissioner s 5 findings are supported by substantial evidence; and (2) the 6 Commissioner used proper legal standards. 7 763 F.2d 1061, 1064 (9th Cir. 1985). See Swanson v. Secretary, 8 9 DISCUSSION 10 11 A treating physician s conclusions must be given substantial 12 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 13 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ( the ALJ must 14 give sufficient weight to the subjective aspects of a doctor s opinion 15 . . . 16 physician ) (citation omitted). 17 opinions are contradicted,2/ if the ALJ wishes to disregard the 18 opinion[s] of the treating physician he . . . must make findings 19 setting forth specific, legitimate reasons for doing so that are based 20 on substantial evidence in the record. 21 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); 22 see Rodriquez v. Bowen, 876 F.2d at 762 ( The ALJ may disregard the 23 treating physician s opinion, but only by setting forth specific, 24 legitimate reasons for doing so, and this decision must itself be 25 based on substantial evidence ) (citation and quotations omitted); This is especially true when the opinion is that of a treating Even where the treating physician s Winans v. Bowen, 853 F.2d 26 2/ 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). 3 1 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) ( broad and 2 vague reasons for rejecting the treating physician s opinions do not 3 suffice); Embrey v. Bowen, 849 F.2d at 421 ( To say that medical 4 opinions are not supported by sufficient objective findings or are 5 contrary to the preponderant conclusions mandated by the objective 6 findings does not achieve the level of specificity our prior cases 7 have required . . . ). 8 9 Section 404.1512(e) of 20 C.F.R. provides that the 10 Administration will seek additional evidence or clarification from 11 your medical source when the report from your medical source contains 12 a conflict or ambiguity that must be resolved, the report does not 13 contain all of the necessary information, or does not appear to be 14 based on medically acceptable clinical and laboratory diagnostic 15 techniques. 16 ( If the ALJ thought he needed to know the basis of Dr. Hoeflich s 17 opinions in order to evaluate them, he had a duty to conduct an 18 appropriate inquiry, for example, by subpoenaing the physicians or 19 submitting further questions to them. 20 the hearing to augment the record ) (citations omitted); see also 21 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) ( the ALJ has a 22 special duty to fully and fairly develop the record and to assure that 23 the claimant s interests are considered ). See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) He could also have continued 24 25 It appears likely that both the Certificate of Disability, 26 etc. and the Statement of Provider reflect the opinion of one or 27 more of Plaintiff s treating physicians that Plaintiff cannot work. 28 At a minimum, absent further record development, substantial evidence 4 1 fails to support the conclusion that these documents did not emanate 2 from Plaintiff s treating physician(s). 3 4 Absent further inquiry, the ALJ properly could not reject these 5 opinions. [T]he ALJ need not accept an opinion of a physician even 6 a treating physician if it is conclusionary and brief and is 7 unsupported by clinical findings. 8 1019-20 (9th Cir. 1992); accord, Burkhart v. Bowen, 856 F.2d 1335, 9 1339-40 (9th Cir. 1988); Young v. Heckler, 803 F.2d 963, 967-68 (9th Matney v. Sullivan, 981 F.2d 1016, 10 Cir. 1986). However, authorities such as Smolen v. Chater, 80 F.3d 11 1273, 1288 (9th Cir. 1996) and section 404.1512(e) of 20 C.F.R. 12 suggest that, under the circumstances of the present case, further 13 inquiry of the treating source(s) should precede a final determination 14 of whether the opinions are not adequately explained or supported. 15 16 When a court reverses an administrative determination, the 17 proper course, except in rare circumstances, is to remand to the 18 agency for additional investigation or explanation. 19 537 U.S. 12, 16 (2002) (citations and quotations omitted). 20 proper where, as here, additional administrative proceedings could 21 remedy the defects in the decision. 22 599, 603 (9th Cir. 1989); see generally Kail v. Heckler, 722 F.2d 23 1496, 1497 (9th Cir. 1984). INS v. Ventura, Remand is McAllister v. Sullivan, 888 F.2d 24 25 The Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 26 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ( Harman ) does not 27 compel a reversal rather than a remand of the present case. 28 Harman, the Ninth Circuit stated that improperly rejected medical 5 In 1 opinion evidence should be credited and an immediate award of benefits 2 directed where (1) the ALJ has failed to provide legally sufficient 3 reasons for rejecting such evidence, (2) there are no outstanding 4 issues that must be resolved before a determination of disability can 5 be made, and (3) it is clear from the record that the ALJ would be 6 required to find the claimant disabled were such evidence credited. 7 Harman at 1178 (citations and quotations omitted). 8 arguendo, the Harman holding survives the Supreme Court s decision in 9 INS v. Ventura, 537 U.S. 12, 16 (2002),3/ the Harman holding does not Assuming, 10 direct reversal of the present case. 11 recontact the treating source(s) concerning outstanding issues that 12 must be resolved before a determination of disability can be made. 13 Further, it is not clear from the record that the ALJ would be 14 required to find Plaintiff disabled for the entire claimed period of 15 disability were the opinions of the treating source(s) credited. 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 Here, the Administration must CONCLUSION 27 3/ 28 The Ninth Circuit has continued to apply Harman despite INS v. Ventura. See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 6 For all of the foregoing reasons,4/ Plaintiff s and Defendant s 1 2 motions for summary judgment are denied and this matter is remanded 3 for further administrative action consistent with this Opinion. 4 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 7 DATED: October 20, 2008. 8 9 ______________/S/_______________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4/ The Court has not reached any other issue raised by Plaintiff except insofar as to determine that a directive for the immediate payment of disability benefits would be inappropriate. 7

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