Kristy Lynn Slaff v. Carolyn W Colvin, No. 5:2013cv01939 - Document 15 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh; the ALJ's decision is reversed and the case is remanded to the Agency for further proceedings consistent with this Memorandum Opinion and Order. IT IS SO ORDERED.See order for further details. (jy)
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Kristy Lynn Slaff v. Carolyn W Colvin Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 KRISTY LYNN SLAFF, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) Case No.: ED CV 13-1939-PJW ) ) ) ) MEMORANDUM OPINION AND ORDER ) ) ) ) ) ) ) 16 17 18 19 20 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security Administration (“the Agency”), denying her application for Disability Insurance Benefits (“DIB”). She claims that the Administrative Law Judge (“ALJ”) erred when he: (1) determined 21 that Plaintiff’s depression and anxiety did not cause any 22 limitations; (2) relied on the testifying doctor’s opinion 23 instead of the treating doctors’ opinions; and (3) found that 24 Plaintiff and her husband were not credible. 25 explained below, the Court concludes that the ALJ erred and 26 remands the case to the Agency for further proceedings. For the reasons 27 28 1 Dockets.Justia.com II. 1 SUMMARY OF PROCEEDINGS 2 In October 2008, Plaintiff applied for DIB, alleging that 3 she had been disabled since August 2006, due to pain caused by 4 fibromyalgia and chronic fatigue syndrome. (Administrative 5 Record (“AR”) 70-87, 211-13, 235, 259-66.) The Agency denied 6 the applications initially and on reconsideration. She then 7 requested and was granted a hearing before an ALJ. On March 23, 8 2010, she appeared with counsel and testified at the hearing. 9 (AR 69-88.) The ALJ determined that she was not disabled and 10 denied her application. (AR 94-101.) Plaintiff appealed to the 11 Appeals Council, which remanded the case to the ALJ to address 12 several issues that were overlooked in the first decision. 13 107-10.) 14 another decision, also concluding that Plaintiff was not 15 disabled. 16 Council, which denied review. (AR On remand, a second ALJ held a hearing and issued (AR 22-34, 41-66.) III. 17 Plaintiff appealed to the Appeals (AR 1-6.) This action followed. ANALYSIS A. The ALJ’s Finding that Plaintiff’s Depressive and Anxiety 18 Disorders did not Cause any Limitations 19 The ALJ determined that Plaintiff suffered from depressive 20 21 disorder and anxiety disorder and that these were severe 22 impairments. 23 did not suffer from any mental limitations as a result. 24 27.) 25 that her treating physician (Pamela Alvarez) opined that her 26 stamina and ability to focus were very limited and the reviewing 27 physician (Loomis) determined that she would be restricted to 28 simple, non-public tasks. (AR 24.) He also determined, however, that she Plaintiff contends that this was error. She points out (Joint Stip. at 8-9.) 2 (AR 1 The Agency argues that the ALJ did not err in concluding 2 that Plaintiff’s mental impairments did not impact her ability 3 to work. 4 evidence and arrived at a reasonable decision. 5 out that Plaintiff failed to attend her scheduled consultative 6 examination, which would have provided more information on the 7 extent of her condition and how it may have impacted her ability 8 to work. 9 It argues that the ALJ sifted through conflicting It also points The Court finds that further information is needed to 10 properly resolve this issue. 11 examined by the consultative examiner. 12 obtained, the ALJ can take it into account along with the other 13 medical evidence, including Dr. Alvarez’s and Dr. Loomis’s 14 opinions. 15 to reject Dr. Alvarez’s opinion on the grounds that: (1) Dr. 16 Alvarez offered an opinion on the ultimate issue of disability; 17 (2) her opinion was inconsistent with the objective medical 18 evidence as a whole; and (3) Dr. Alvarez was a neurologist, not 19 a psychologist. 20 First, Plaintiff should be Once that report is In doing so, the ALJ should reconsider his decision (AR 26.) First, though the issue of disability is reserved to the 21 Agency and, therefore, an ALJ is not bound to accept a doctor’s 22 opinion on the subject, see Boardman v. Astrue, 286 F. App’x 23 397, 399 (9th Cir. 2008), where, as here, a treating doctor 24 offers such an opinion, the ALJ is not at liberty to reject the 25 doctor’s entire opinion based on the fact that she offered an 26 opinion on disability, too. 27 631-33 (9th Cir. 2007) (explaining, even if treating doctor’s 28 opinion is not entitled to controlling weight, it must still be See Orn v. Astrue, 495 F.3d 625, 3 1 considered by ALJ). The ALJ may also not reject a doctor’s 2 opinion based on a generalized finding that the opinion is not 3 supported by the objective medical evidence. 4 v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988) (holding ALJ’s 5 reasons for rejecting doctor’s opinion not clear and convincing 6 where ALJ “merely states that the objective factors point toward 7 an adverse conclusion and makes no effort to relate any of these 8 objective factors to any of the specific medical opinions and 9 findings he rejects”). See, e.g., Embrey Instead, he must explain in detail what 10 part of the doctor’s opinion is inconsistent with what part of 11 the medical record. 12 the ALJ that psychologist Michael Kania has more expertise in 13 determining limitations caused by anxiety and depression than 14 neurologist Alvarez, it is not clear to the Court that the ALJ 15 would have rejected Dr. Alvarez’s opinion solely because she is 16 a neurologist. 17 as well. Finally, though the Court might agree with On remand, the ALJ should reconsider this issue 18 B. The ALJ’s Rejection of the Treating Doctors’ Opinions 19 Plaintiff complained that she suffers from fibromyalgia. 20 The ALJ agreed, determining that Plaintiff’s fibromyalgia was a 21 severe impairment. 22 medical expert Arthur Lorber to testify about Plaintiff’s 23 conditions and her limitations. 24 determined that Plaintiff did not have any limitations as a 25 result of her impairments. 26 however, that he does not accept fibromyalgia as a valid 27 diagnosis. (AR 25.) (AR 57.) At the hearing, the ALJ called (AR 55-57.) (AR 56-57.) Dr. Lorber He also testified, The ALJ accorded “great weight” to Dr. 28 4 1 Lorber’s opinion. 2 in doing so. 3 (AR 33.) Plaintiff argues that the ALJ erred The Court agrees. The Agency and the courts have determined that fibromyalgia 4 is a real disorder that can impact a person’s ability to work. 5 See, e.g., Benecke v. Barnhart, 379 F.3d 587 (9th Cir. 2004); 6 and Social Security Ruling 12-2, Evaluation of Fibromyalgia, 7 2012 WL 3104869, *2 (“[Fibromyalgia is a [medically determinable 8 impairment] when it is established by appropriate medical 9 evidence. [Fibromyalgia] can be the basis for a finding of 10 disability.”). 11 has fibromyalgia. 12 testify about Plaintiff’s impairments and the limitations caused 13 by them who does not believe that fibromyalgia is real. 14 Naturally, such a doctor would conclude that there are no 15 limitations stemming from a disorder that he does not believe 16 exists. 17 that fibromyalgia is real and ask that doctor to opine whether 18 Plaintiff’s fibromyalgia impacts her ability to work. 19 The ALJ in this case determined that Plaintiff It made no sense, then, to call a doctor to On remand, the ALJ should consult a doctor who believes Plaintiff also contends that the ALJ erred when he accepted 20 Dr. Lorber’s opinion over the opinions of the treating doctors. 21 Again, the Court agrees. 22 should not have relied on Dr. Lorber because he does not believe 23 that fibromyalgia exists. 24 for discounting the treating doctors’ opinions are inadequate. 25 For example, the ALJ rejected the doctors’ opinions because they 26 were “inconsistent with the objective medical evidence as a 27 whole.” 28 scrutiny. (AR 31-32.) First, as explained above, the ALJ Second, the reasons the ALJ provided This is not specific enough to withstand Embrey, 849 F.2d at 421–22. 5 The ALJ also noted that 1 Plaintiff’s ability to participate in daily activities 2 undermined the doctors’ opinions that she was extremely 3 restricted. 4 Plaintiff’s ability to perform minimal activities, like driving 5 her kids one-half mile to school every day, contradicts her 6 doctors’ opinions that she is extremely limited. 7 v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (holding ALJ 8 errs in failing to explain how claimant’s ability to perform 9 daily activities translated into an ability to perform work). (AR 31-31.) The Court does not agree that See Gonzalez 10 On remand, the ALJ should reconsider how much weight should be 11 accorded the doctors’ opinions.1 12 C. The ALJ’s Credibility Findings 13 The ALJ questioned Plaintiff’s testimony that she suffered 14 from disabling pain and limitations because he found that it was 15 inconsistent with her ability to perform various daily 16 activities, like driving, maintaining personal hygiene, and 17 going to family outings. 18 that these very limited activities contradict Plaintiff’s 19 allegations of severe pain and/or restrictions. 20 Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“[T]he (AR 28.) The Court does not agree See, e.g., 21 The ALJ rejected Dr. Steinberg’s assessment because, among other things, it was performed 11 months after Plaintiff’s date last insured. (AR 32.) That, in and of itself, is not a valid reason for discounting a doctor’s opinion. See Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) (noting Ninth Circuit law specifically holds that medical evaluations performed after date last insured are relevant to evaluation of claimant’s condition before date last insured). And, as Plaintiff points out, the ALJ accepted instead Dr. Lorber’s opinion, which came more than two years after her date last insured. The ALJ cannot reject one doctor’s opinion because it was too late and accept another doctor’s opinion that came even later. 1 22 23 24 25 26 27 28 6 1 mere fact that a plaintiff has carried on certain daily 2 activities, such as grocery shopping, driving a car, or limited 3 walking for exercise, does not in any way detract from her 4 credibility as to her overall disability.”). 5 The ALJ also questioned Plaintiff’s sincerity because, in 6 response to a question posed by the ALJ, she testified that the 7 last time that she reported side effects to her doctor was four 8 months before the administrative hearing. 9 that the ALJ misinterpreted this testimony to mean that the (AR 59.) It seems 10 first time that she reported the side effects to her doctor was 11 four months before the hearing. 12 had been reporting side effects to her doctors for years. 13 649-51, 1016.) 14 is also rejected. 15 (AR 28.) In fact, Plaintiff (AR Thus, this reason for questioning her testimony The ALJ questioned Plaintiff’s credibility as a result of 16 her failure to attend her scheduled consultative examination. 17 (AR 28.) 18 questioning her testimony. 19 841281, at *4 (N.D. Cal. Mar. 10, 2010) (upholding ALJ’s finding 20 that claimant was not credible based on fact that she failed to 21 attend consultative examination). 22 that her failure to attend was due to her need to care for her 23 sick mother, she never made any effort to reschedule the 24 appointment. 25 unpersuasive. 26 extent of her symptoms to the Agency doctor she would have made 27 a point to follow up and arrange for a new appointment after she 28 missed the first one. This is backed by the record and is a valid reason for See Carpenter v. Astrue, 2010 WL Though Plaintiff explained And her attempt to shift blame to the Agency is Had Plaintiff truly been motivated to display the 7 The ALJ also discussed the fact that Plaintiff’s treatment 1 2 was routine and conservative, though it is not clear if that was 3 one of the reasons he relied on to discount her testimony. 4 29.) 5 testimony, see Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 6 2005), though it is not clear what more aggressive treatment is 7 warranted for fibromyalgia. 8 9 (AR This could be a valid reason for questioning Plaintiff’s In the end, the Court finds that only one or two of the three or four reasons relied on by the ALJ for questioning 10 Plaintiff’s testimony are valid. 11 whether the ALJ would have found Plaintiff not credible based 12 only on the fact that she had failed to attend the consultative 13 examination and had received conservative care. 14 v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) 15 (holding error by ALJ in credibility determination is harmless 16 “[s]o long as there remains substantial evidence supporting the 17 ALJ’s conclusions on . . . credibility and the error does not 18 negate the validity of the ALJ’s ultimate credibility 19 conclusion.”). 20 issue to the ALJ for further consideration. 21 Further, it is not clear See Carmickle For that reason, the Court will remand this Finally, Plaintiff complains that the ALJ erred when he 22 rejected her husband’s “testimony” that Plaintiff was limited in 23 most everything she did because of her ailments. 24 that this testimony was not persuasive for a variety of reasons, 25 including the fact that it was not supported by the clinical or 26 diagnostic medical evidence the ALJ discussed in his decision. 27 (AR 29.) 28 some of the medical evidence. The ALJ found This reason is germane to the witness and is backed by Because the threshold for 8 1 rejecting lay testimony is exceedingly low, the Court will 2 affirm the ALJ’s finding as to the husband. 3 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (approving ALJ’s 4 decision to reject lay testimony that was inconsistent with 5 medical evidence). IV. CONCLUSION 6 7 See Bayliss v. For these reasons, the ALJ’s decision is reversed and the 8 case is remanded to the Agency for further proceedings 9 consistent with this Memorandum Opinion and Order.2 10 IT IS SO ORDERED. 11 DATED: 1/28/15 12 13 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Social Security\SLAFF, 1939\Memo Opinion and Order s.docx 2 Plaintiff requests that the Court remand for an award of benefits. The Court recognizes it has the authority to do so but concludes that there are numerous questions that must be answered before it is clear whether Plaintiff is disabled and entitled to benefits. See Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (noting district court is required to remand for benefits only when record has been fully developed and further proceedings would serve no purpose and when ALJ would be required to find claimant disabled on remand). 9
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