Michael L Logan v. Michael J Astrue, No. 5:2012cv00107 - Document 16 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh, The Agencys decision isreversed and the case is remanded for further proceedings consistent with this opinion and order. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MICHAEL L. LOGAN, Plaintiff, 11 12 13 14 v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 12-107-PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Plaintiff Michael Logan appeals a decision by Defendant Social 19 Security Administration ( the Agency ), denying his application for 20 Disability Insurance Benefits ( DIB ). 21 Administrative Law Judge ( ALJ ) erred when she found that his 22 allegations were not fully credible and when she determined that he 23 could perform light work. 24 reasons explained below, the Court concludes that the ALJ erred and 25 remands the case to the Agency for further proceedings consistent with 26 this decision. 27 28 He claims that the (Joint Stip. at 4-9, 13-17.) For the 1 II. SUMMARY OF PROCEEDINGS 2 In January 2009, Plaintiff applied for DIB, alleging that he had 3 been disabled since December 12, 2008, due to abdominal adhesions and 4 an infection stemming from a recent surgery.1 5 ( AR ) 102, 115.) 6 reconsideration. 7 granted a hearing before an ALJ. 8 Plaintiff appeared with counsel and testified at the hearing. 9 44.) (Administrative Record The Agency denied the application initially and on (AR 45-50, 56-60.) He then requested and was (AR 62-65.) On October 18, 2010, (AR 23- On November 22, 2010, the ALJ issued a decision denying 10 benefits. 11 which denied review. 12 (AR 6-14.) Plaintiff appealed to the Appeals Council, (AR 1-5.) III. This action followed. DISCUSSION 13 A. 14 According to Plaintiff, he is essentially incapacitated, unable The Credibility Determination 15 to sit or stand for more than five minutes at a time and precluded 16 from lifting more than five pounds. 17 Vicodin every day and that he spends most of the day in a reclined 18 position to alleviate his pain. 19 finding that Plaintiff could perform light work. 20 that the ALJ erred in doing so. 21 following reasons, the Court agrees. 22 Plaintiff claims that he takes The ALJ rejected these allegations, Plaintiff contends (Joint Stip. at 13-17.) For the ALJs are tasked with judging the credibility of witnesses. 23 making these credibility determinations, they may employ ordinary 24 credibility evaluation techniques. In Smolen v. Chater, 80 F.3d 1273, 25 26 27 28 1 Abdominal adhesion are bands of tissue that form between abdominal tissues and organs, causing them to stick together. These adhesions can pull and twist organs out of place. http://digestive.niddk.nih.gov/ddiseases/pubs/intestinaladhesions/. 2 1 1284 (9th Cir. 1996). 2 evidence of an impairment which could reasonably be expected to 3 produce the symptoms alleged and there is no evidence of malingering, 4 the ALJ can only reject the claimant s testimony for specific, clear, 5 and convincing reasons, id. at 1283-84, that are supported by 6 substantial evidence in the record. 7 959 (9th Cir. 2002). 8 9 Where a claimant has produced objective medical Thomas v. Barnhart, 278 F.3d 947, Here, the ALJ found that Plaintiff s multiple hospitalizations and surgeries (for abdominal pain and bowel obstruction) were severe 10 impairments that could reasonably be expected to cause his alleged 11 symptoms. 12 allegations of disabling pain and incapacity were not credible 13 because: (1) they were contained in written reports that were 14 completed soon after Plaintiff was discharged from the hospital 15 following surgery; and (2) the overall evidence did not support a 16 finding of such severe functional limitations. 17 (AR 11, 12.) The ALJ found, however, that Plaintiff s (AR 12.) Neither of these reasons constitutes a valid excuse for rejecting 18 Plaintiff s credibility. 19 that Plaintiff completed them soon after he was released from the 20 hospital following surgery and, therefore, his perception of his 21 condition could have been overly influenced by the fact that he was 22 recovering from surgery, Plaintiff testified to essentially the same 23 ailments at the administrative hearing 18 months later. 24 124-26.) 25 her finding that Plaintiff s allegations were questionable because 26 they were made at the time he was recovering from surgery is rejected. 27 28 As to the written reports, though it is true (AR 34-36, The ALJ never addressed that testimony, however. As such, As to the ALJ s finding that Plaintiff s claims of debilitating pain were not supported by the overall evidence in the record, that 3 1 finding is not sufficiently specific to withstand appellate review. 2 See, e.g., Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883-85 (9th Cir. 3 2006) (ALJ s conclusion that claimant s testimony was not consistent 4 with or supported by the overall medical evidence of record did not 5 constitute a meaningful explanation for the court to assess); Embrey 6 v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988) (holding ALJ s finding 7 that the totality of the evidence of record does not substantiate 8 the claimant s allegations does not achieve the level of 9 specificity required to disregard claimant s excess pain testimony). 10 There is no way for the parties or the Court to determine which 11 evidence the ALJ was referring to and why it undermined Plaintiff s 12 testimony. 13 and, therefore, this reason, too, is rejected. 14 should reconsider the credibility issue. As a result, there is no possibility of meaningful review On remand, the ALJ 15 B. The Medical Evidence 16 Plaintiff complains in general that the ALJ erred in addressing 17 the medical evidence and, more particularly, that she improperly 18 assessed the doctors opinions. 19 the opinion of his surgeon, Dr. Turner, who opined that he could not 20 perform any work. 21 reliance on the medical expert, Dr. Sami Nafoosi. 22 9.) 23 erred in failing to address Dr. Turner s opinion and remands the case 24 for further consideration of the doctors opinions. 25 He faults the ALJ for not accepting (Joint Stip. at 8-9.) He also questions the ALJ s (Joint Stip. at 4- For the reasons discussed below, the Court concludes that the ALJ ALJs are responsible for assessing the medical evidence and 26 determining which opinions to accept and which ones to reject. 27 general rule, a treating doctor s opinion is entitled to deference. 28 Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 4 As a Despite this rule, 1 an ALJ may reject a treating doctor s opinion for specific and 2 legitimate reasons that are supported by substantial evidence in the 3 record. 4 Id. at 632. Dr. Turner performed three major surgeries on Plaintiff for small 5 bowel obstructions and ventral hernias between September 2007 and 6 January 2009. 7 abdominal wall or stomach muscles left. 8 Whom it May Concern, note, Dr. Turner opined that Plaintiff was 9 unable to perform any type of regular working duties because of He observed that Plaintiff does not have much In a brief, To 10 severe abdominal pain. 11 by name or address this opinion in her decision. 12 the treating physician, Dr. Turner s opinion was entitled to 13 deference, absent a valid reason to discount it. 14 the ALJ was required to address it and explain why she was not relying 15 on it. 16 (AR 696.) (AR 696.) The ALJ did not mention Dr. Turner This was error. As At the very least, The Agency concedes that the ALJ failed to address Dr. Turner s 17 opinion but argues, it seems, that any error in doing so was harmless 18 because the opinion: (1) was written eight months after Plaintiff s 19 insurance ran out; and (2) was contradicted by at least four other 20 physicians. 21 these arguments persuasive. 22 was written after the date last insured does not mean that it was not 23 relevant to the question of disability. 24 doctor performed on Plaintiff occurred before the date last insured; 25 the third, the following month. 26 burden in this case was to establish that he became disabled before 27 December 31, 2008, his date last insured, and that his impairment 28 lasted or was expected to last for at least 12 months, the ending date (Joint Stip. at 12.) The Court does not find either of To begin with, the fact that the opinion Two of the surgeries the In addition, because Plaintiff s 5 1 for purposes of the disability analysis was December 31, 2009. 2 U.S.C. ยง 423(d)(1)(A). 3 clearly relevant to that analysis. 4 F.2d 1222, 1225 (9th Cir. 1988) (noting general rule that reports 5 containing observations made after the period for disability are 6 relevant to assess the claimant s disability. ); see also Lingenfelter 7 v. Astrue, 504 F.3d 1028, 1033 n.3 (9th Cir. 2007) (noting medical 8 reports made after the claimant s disability insurance lapsed were 9 relevant and were properly considered by the ALJ and the Appeals 10 See 42 Dr. Turner s August 5, 2009 opinion was See generally Smith v. Bowen, 849 Council under Smith).2 11 As to the Agency s argument that Dr. Turner s opinion was 12 properly ignored because it was contradicted by at least four other 13 doctors, that argument misses the point. 14 where the doctors opinions are in conflict, it is the treating 15 doctor s opinion that is entitled to deference -even if it happens to 16 be the minority view--unless there is a valid reason for questioning 17 it. 18 All things being equal, In addition, the Court notes that the ALJ never suggested that 19 she was rejecting Dr. Turner s opinion because it was contradicted by 20 the other doctors opinions. 21 In this situation, the Agency may not champion justifications that the 22 ALJ did not rely on in an effort to explain her decision. She simply, it appears, overlooked it. See Bray v. 23 24 25 26 27 28 2 The Agency based its initial denial of Plaintiff s application on its expectation that he would regain the ability to return to work by December 2009. (AR 48, 686.) The January surgery and the August 2009 opinion are relevant to that inquiry. The Court also observes that Plaintiff s 2010 surgery is, arguably, relevant, too. It follows that the ALJ should not have curtailed the medical expert s testimony regarding that surgery on the basis that it was beyond Plaintiff s date last insured. (AR 38.) 6 1 Astrue, 554 F.3d 1219, 1225 (9th Cir. 2009) ( Long-standing principles 2 of administrative law require us to review the ALJ s decision based on 3 the reasoning and factual findings offered by the ALJ -not post hoc 4 rationalizations that attempt to intuit what the adjudicator may have 5 been thinking. ) 6 Having concluded that the ALJ erred, the Court must now decide 7 whether the error was harmless. For the error to be harmless in this 8 context, the Court would have to confidently conclude that, after 9 fully crediting Dr. Turner s opinion that Plaintiff was unable to 10 work, no reasonable ALJ could have found Plaintiff disabled. 11 Comm r, 454 F.3d 1050, 1056 (9th Cir. 2006); see also Carmickle v. 12 Comm r, 533 F.3d 1155, 1162-63 (9th Cir. 2008) (explaining, under 13 Stout, where ALJ provides no reason for rejecting evidence at issue, 14 reviewing court must consider whether ALJ would have made different 15 decision if he relied on the rejected evidence). 16 not the case here and, therefore, remand on this issue is warranted. 17 Stout v. Obviously, that is Finally, Plaintiff complains that the ALJ erred in relying on 18 medical expert Dr. Nafoosi, who opined, essentially, that Plaintiff 19 was not precluded from working. 20 the medical expert s opinion was proper because the opinion was 21 consistent with the opinion of the examining doctor, Dr. To. 22 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding 23 opinion of non-examining medical expert constitutes substantial 24 evidence when it is consistent with other independent evidence in the 25 record ).3 In a vacuum, the ALJ s reliance on See However, in light of the fact that the Court is remanding 26 27 28 3 Plaintiff points out that Dr. Nafoosi s opinion is inconsistent with the reviewing physician Dr. Naiman s opinion, i.e., that Plaintiff would be limited to only occasional climbing, stooping, 7 1 the case for the ALJ to reconsider the credibility issue and the 2 treating doctor s opinion, it remands this issue as well. 3 the ALJ should take another look at the medical evidence, including 4 the doctors opinions, and decide which ones she finds to be the most 5 persuasive.4 6 IV. On remand, CONCLUSION 7 For the reasons set forth above, the Agency s decision is 8 reversed and the case is remanded for further proceedings consistent 9 with this opinion and order.5 10 IT IS SO ORDERED. 11 Dated: September 23, 2013 12 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 13 14 S:\PJW\Cases-Social Security\LOGAN, 107\Memo_Opinion.wpd 15 16 17 18 and kneeling. (AR 684.) The ALJ was entitled to rely on Dr. Nafoosi s and Dr. To s opinions over Dr. Naiman s, however, and evidently did so. See Smolen, 80 F.3d at 1285-86 (noting nonexamining physician s opinion granted less weight than opinion of examining physician) (citation omitted). 19 4 20 21 22 23 24 25 26 27 28 Plaintiff argues that the ALJ ignored the existence of his other impairments, including small bowel obstruction, sleep apnea, hernias, depression, and acute respiratory failure. (Joint Stip. at 7-8.) This argument is rejected. Plaintiff never claimed that these impairments prevented him from working and has not pointed to any medical records showing that they had any impact on his ability to perform basic work activities. In fact, the only mention of most of them is in a December 24, 2008 discharge summary diagnosis. (AR 38788.) Further, even assuming that he did suffer from them, the mere existence of an impairment is not proof of disability. Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993). 5 The Court has considered Plaintiff s request that the case be remanded for an award of benefits and denies that request because it is not clear from the record that Plaintiff is disabled and/or entitled to benefits. 8
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