Teresa L Cox v. Carolyn W Colvin, No. 5:2014cv00372 - Document 21 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick re: First MOTION for Summary Judgment 20 , First MOTION for Summary Judgment as to JUDGMENT OR REMAND 15 . IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (dml)
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Teresa L Cox v. Carolyn W Colvin Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 TERESA L. COX, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ) COMMISSIONER OF SOCIAL SECURITY, ) ) Defendant. ) ___________________________________) NO. ED CV 14-372-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 March 5, 2014, seeking review of 26 the denial of social security disability benefits. The parties filed 27 a consent to proceed before a United States Magistrate Judge on 28 April 3, 2014. Dockets.Justia.com 1 Plaintiff filed a motion for summary judgment on August 6, 2014. 2 Defendant filed a motion for summary judgment on November 5, 2014. 3 The Court has taken both motions under submission without oral 4 argument. See L.R. 7-15; “Order,” filed March 14, 2014. 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 Plaintiff asserts disability since February 2, 2010, based on alleged physical and mental impairments (Administrative Record 10 (“A.R.”) 160-70, 183). An Administrative Law Judge (“ALJ”) examined 11 the medical record and heard testimony from Plaintiff and a vocational 12 expert (A.R. 10-379). 13 disc disease, obesity, diabetes, asthma, obstructive sleep apnea, and 14 bipolar disorder, but retains the residual functional capacity to 15 perform a limited range of sedentary work (A.R. 12, 14).1 The ALJ found Plaintiff has severe degenerative In 16 17 18 19 20 21 22 23 24 25 26 27 1 The ALJ found that Plaintiff: can work in an environment with no more air pollutants than in an air-conditioned environment; she cannot work at heights or on ladders; she cannot drive and be exposed to dangerous machinery; she cannot reach above her head with either arm; she can occasionally bend and twist; she can lift 10 pounds occasionally and 10 pounds frequently; she can sit, stand, and walk six hours out of an eight-hour day; she can sit for 30 minutes at a time and she can stand and stretch for one minute or less before resuming sitting; she can stand and walk for 30 minutes at a time with sitting for one minute out of every 30 minutes; she cannot do work involving quick decision making or rapid physical activity like a rapid assembly line; she cannot interact with the public; and she can have non-intense and occasionally [sic] interactions with the coworkers and supervisors. 28 (continued...) 2 1 accordance with the vocational expert’s testimony, the ALJ also found 2 Plaintiff can perform work as an “address clerk” or “bench hand,” and 3 therefore is not disabled (A.R. 20-21; see also A.R. 52-54 (vocational 4 expert testimony)). The Appeals Council denied review (A.R. 1-3). 5 6 STANDARD OF REVIEW 7 8 9 Under 42 U.S.C. section 405(g), this Court reviews the Administration’s decision to determine if: (1) the Administration’s 10 findings are supported by substantial evidence; and (2) the 11 Administration used correct legal standards. 12 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 13 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 14 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 15 Substantial evidence is “such relevant evidence as a reasonable mind 16 might accept as adequate to support a conclusion.” 17 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 18 see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). See Carmickle v. Richardson v. 19 20 DISCUSSION 21 22 Plaintiff contends that the ALJ materially erred in the 23 evaluation of the medical opinion evidence. 24 below, the Court agrees. 25 /// 26 /// Remand is appropriate. 27 1 28 For the reasons discussed (...continued) (A.R. 14). 3 1 I. Summary of the Relevant Medical Record. 2 3 Plaintiff reported a history of cervical spine pain following a 4 car accident in 1993 (A.R. 33, 228). On January 18, 2009, Plaintiff 5 went to the Desert Valley Hospital with complaints of right arm pain 6 and shoulder pain from a recent fall at work (A.R. 313-25). 7 Plaintiff’s treating doctor ordered her off work (A.R. 323). 8 Plaintiff was not released back to work until July 22, 2009 (A.R. 9 241). 10 11 On August 26, 2009, orthopedic surgeon Dr. Rajiv Puri examined 12 Plaintiff and found she had a limited range of motion in the cervical 13 spine with left arm pain, limited left shoulder motion in abduction 14 due to impingement, slightly decreased sensation in the C5 and C6 15 dermatomes on the left hand, and hypoactive reflexes on both sides 16 (A.R. 229). 17 left upper extremity (A.R. 229). 18 disease of the cervical spine with radicular pain and numbness in the 19 left arm, and calcific tendinitis of the left shoulder for which he 20 gave Plaintiff a cortisone injection (A.R. 229; see also A.R. 230 21 (radiology report)). 22 cervical spine MRI showing degenerative disc disease, especially at 23 C4-5, C5-6, and C6-7, causing foraminal stenosis, confirmed by x-rays 24 (A.R 228; see also A.R. 231-32 (cervical spine MRI dated September 9, 25 2009)). 26 anterior cervical discectomy and fusion from C4 to C7, since 27 Plaintiff’s pain and numbness were not getting any better with 28 conservative treatment (A.R. 228). Plaintiff complained of worsening pain in the neck and Dr. Puri diagnosed degenerative disc On September 16, 2009, Dr. Puri reviewed a Dr. Puri indicated that Plaintiff would be a candidate for There is no record of surgery, 4 1 however. 2 3 On February 2, 2010, Plaintiff reportedly took a “stress leave” 4 from work (A.R. 252). Plaintiff was going through a divorce and 5 assertedly felt depressed (A.R. 237, 241, 252). 6 return to work (A.R. 183, 363).2 Plaintiff did not 7 8 9 High Desert Primary Care Physician’s Assistant, Teresa Podgorski, treated Plaintiff from August of 2011 through July of 2012 (A.R. 326- 10 58). On March 12, 2012, Plaintiff was prescribed Norco for her neck 11 pain with radiculopathy (A.R. 334-35). 12 referred Plaintiff for a neurosurgical consultation for cervical disc 13 degeneration (A.R. 350). 14 see Dr. Ali H. Mesiwala for a consultation and two follow up visits 15 (A.R. 348). 16 showed mild-to-moderate multilevel degenerative changes within the 17 cervical spine, most prominent from C4-5 through C6-7 and “no 18 significant interval change” from the September, 2009 MRI (A.R. 343- 19 44). 20 her MRI (A.R. 327-29). 21 radiculopathy, fatigue, decreased ability to concentrate, and 22 depression (A.R. 327). 23 disc degeneration and related conditions, controlled type 2 diabetes On March 30, 2012, Podgorski Authorization was provided for Plaintiff to An MRI of Plaintiff’s cervical spine on June 8, 2012, On July 30, 2012, Plaintiff reported for a follow up visit after Plaintiff complained of chronic neck pain with Podgorski noted that Plaintiff had cervical 24 25 26 27 28 2 Dr. Warris Walayat treated Plaintiff for mental health issues from March of 2012 through at least August of 2012 (A.R. 359-68). Dr. Walayat diagnosed bipolar disorder and anxiety (A.R. 360-62). At various times, Plaintiff was prescribed combinations of Wellbutrin, Zoloft, Ritalin, Abilify, Xanax, and Trileptal (A.R. 243-44, 252-59, 287, 314, 330, 333, 337, 360-63). 5 1 mellitus, hyperlipidemia, episodic mood disorders, and bipolar I 2 disorder (A.R. 328-29). 3 4 In accordance with Podgorski’s referral, Plaintiff consulted with 5 Dr. Mesiwala to determine whether Plaintiff required surgery for her 6 back and neck pain. 7 370-79 (consultation records). 8 reviewed the MRIs of Plaintiff’s cervical spine from September of 2009 9 and June of 2012, and an x-ray of Plaintiff’s lumbar spine from See A.R. 349 (request for consultation), A.R. Dr. Mesiwala examined Plaintiff and 10 November of 2009 (A.R. 370-71; see also A.R. 231-32, 343-44 (cervical 11 spine MRIs); A.R. 248 (lumbar spine x-ray)). 12 Plaintiff had restricted range of motion in flexion and extension of 13 her neck secondary to pain, restricted range of motion in flexion, 14 extension and twisting of her back secondary to pain, motor strength 15 of 5/5 in her upper and lower extremities, intact sensation, no 16 evidence of cerebellar dysfunction, normal gait, and normal muscular 17 tone and bulk (A.R. 370-71). 18 epidural injections for pain management in Plaintiff’s cervical spine 19 – concluding that surgery for the cervical spine was not required at 20 the time – and ordered an MRI of Plaintiff’s lumbar spine to determine 21 if surgery might be necessary for deformities seen on the available x- 22 rays (A.R. 371-72). 23 within the available record. On examination, Dr. Mesiwala recommended a series of There is no MRI of Plaintiff’s lumbar spine 24 25 Dr. Mesiwala completed a “Medical Opinion Re: Ability to Do Work- 26 Related Activities (Physical)” form on September 4, 2012, the day of 27 his initial consultation (A.R. 377-79). 28 Plaintiff: (1) could lift and carry 10 pounds occasionally and 6 Dr. Mesiwala indicated that 1 frequently; (2) could sit less than two hours and stand less than two 2 hours in an 8-hour day; (3) could sit 10 minutes and stand 10 minutes 3 before needing to change positions; (4) must walk around every 10 4 minutes for 10 minutes; and (5) must be able to shift at will from 5 sitting or standing/walking (A.R. 377-78). 6 indicated that Plaintiff could never twist, stoop (bend), crouch, or 7 climb ladders, and could climb stairs only occasionally (A.R. 378). 8 Dr. Mesiwala recorded no impairment in reaching, handling, fingering, 9 feeling, or pushing/pulling, no environmental restrictions, and Dr. Mesiwala also 10 indicated that Plaintiff’s condition would cause her to be absent from 11 work approximately once a month (A.R. 378-79). 12 medical findings support the assigned limitations, Dr. Mesiwala wrote 13 “cervical deg[enerative] disc disease” and “[Plaintiff] has pain 14 related to cervical [degenerative disc disease]” (A.R. 378-79). 15 Mesiwala’s “Medical Opinion, etc.” is the only examining source 16 opinion in the record concerning Plaintiff’s ability to work. When asked what Dr. 17 18 A non-examining State agency review physician, Dr. George N. 19 Lockie, reviewed the available record and opined that Plaintiff was 20 not disabled as of May 26, 2011. 21 Determination Explanation”). 22 medical records, there reportedly was no medical opinion evidence for 23 Dr. Lockie to review (A.R. 58, 64). 24 2009 left shoulder x-ray and the November, 2009 lumbar spine x-ray 25 (A.R. 59; see also A.R. 247-48 (x-rays)). 26 consultative examination was required because “additional evidence 27 needed is not contained in the records of the individual’s medical 28 sources” (A.R. 59). See A.R. 56-67 (“Disability Although Dr. Lockie requested Dr. Puri’s Dr. Lockie did review the July, Dr. Lockie believed that a However, Plaintiff did not receive any 7 1 consultative examination. 2 capable of performing simple repetitive tasks involving: (1) lifting 3 and carrying 20 pounds occasionally and 10 pounds frequently; 4 (2) standing and/or walking approximately six hours in an eight-hour 5 workday, and sitting approximately six hours in an eight-hour workday; 6 (3) unlimited pushing and/or pulling within the weight limits; 7 (4) occasional climbing of ramps, stairs, ladders, ropes, and 8 scaffolds; (5) occasional stooping, kneeling, crouching, and crawling; 9 and (6) frequent balancing, with no other noted limitations (A.R. 60- 10 Dr. Lockie opined that Plaintiff would be 63). 11 12 On reconsideration, non-examining State agency review physician 13 Dr. Pamela Ombres opined that Plaintiff was not disabled as of 14 December 21, 2011. 15 Explanation”). 16 including Dr. Puri’s records and the September, 2009 MRI of 17 Plaintiff’s cervical spine (A.R. 83, 86; see also A.R. 228-32 (Dr. 18 Puri’s records and September, 2009 MRI)). 19 indicated that a consultative examination would be required, yet no 20 consultative examination was ever performed (A.R. 86). See A.R. 82-93 (“Disability Determination Dr. Ombres examined the available medical records Like Dr. Lockie, Dr. Ombres 21 22 23 II. The ALJ Materially Erred in Connection with the Determination of Plaintiff’s Residual Functional Capacity. 24 25 In determining Plaintiff’s physical residual functional capacity, 26 the ALJ gave “significant weight, but not great weight” to the non- 27 examining State agency physicians’ opinions concerning Plaintiff’s 28 ability to work, but added the ALJ’s own restrictions in light of 8 1 Plaintiff’s asthma, sleep apnea, diabetes, and her subjective 2 complaints of pain (A.R. 18; see also A.R. 14 (defining residual 3 functional capacity as including environmental and hazard 4 restrictions, as well as restrictions of no reaching above the head 5 with either arm, and sitting/standing restrictions not found by any 6 medical source)). 7 Mesiwala’s opinion as “generally consistent with the claimant’s mild 8 treatment record,” but found Dr. Mesiwala’s sitting, standing, and 9 walking restrictions “too restrictive given Dr. Mesiwala’s generally The ALJ purportedly gave “some weight” to Dr. 10 mild examination” of Plaintiff (A.R. 17). The ALJ did not discuss Dr. 11 Mesiwala’s opinion that Plaintiff should never twist, stoop (bend), or 12 crouch (A.R. 17; see also A.R. 14 (residual functional capacity 13 providing for occasional bending and twisting)). 14 15 On the present record, the ALJ erred in rejecting Dr. Mesiwala’s 16 opinion in favor of the opinions of the non-examining State agency 17 physicians. 18 receive more weight than the opinion of a non-examining physician. 19 Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995). 20 “[t]he opinion of a nonexamining physician cannot by itself constitute 21 substantial evidence that justifies the rejection of the opinion of 22 . . . an examining physician.” 23 (9th Cir. 1995); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 24 2007) (“When [a nontreating] physician relies on the same clinical 25 findings as a treating physician, but differs only in his or her 26 conclusions, the conclusions of the [nontreating] physician are not 27 ‘substantial evidence.’”); Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 28 (9th Cir. 1990) (nonexamining physician’s conclusions, with nothing The opinion of an examining physician generally should In fact, Lester v. Chater, 81 F.3d 821, 831 9 1 more, not substantial evidence in light of “the conflicting 2 observations, opinions, and conclusions” of examining physician). 3 4 As summarized above, the State agency physicians initially relied 5 on the 2009 x-rays of Plaintiff’s left shoulder and lumbar spine, and 6 on reconsideration relied on the 2009 MRI of Plaintiff’s cervical 7 spine and Dr. Puri’s clinical observations. 8 in part on the 2009 lumbar spine x-ray, 2009 MRI of Plaintiff’s 9 cervical spine, and the June, 2012 MRI of Plaintiff’s cervical spine Dr. Mesiwala also relied 10 (which was unchanged from the 2009 MRI). 11 State agency physicians regarding Plaintiff’s ability to work 12 represent nothing more than conflicting conclusions based on their 13 review of the same clinical records reviewed by Dr. Mesiwala, the 14 opinions of the State agency physicians cannot furnish substantial 15 evidence to support the ALJ’s residual functional capacity 16 determination. 17 the State agency physicians expressly qualified their opinions by 18 stating that sufficient development of the medical record required a 19 consultative examination that was never performed. See id. Because the opinions of the Buttressing this conclusion is the fact that 20 21 Additionally, the record contains no assessment by a treating or 22 examining physician supporting the sitting, standing, and walking 23 limitations the ALJ adopted. 24 own lay assessment of what the ALJ thought were “reasonably congruent 25 limitations” for Plaintiff’s physical condition (A.R. 18). 26 expert medical assistance, the ALJ could not competently translate the 27 medical evidence into a residual functional capacity assessment. 28 is well-settled that an ALJ may not render his or her own medical Rather, the ALJ appears to have made his 10 Absent It 1 opinion or substitute his or her own diagnosis for that of a 2 physician. 3 1999) (ALJ erred in rejecting physicians’ opinions and finding greater 4 residual functional capacity based on claimant’s testimony that he 5 took a road trip; there was no medical evidence to support the ALJ’s 6 determination); Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (an 7 “ALJ cannot arbitrarily substitute his own judgment for competent 8 medical opinion”) (internal quotation marks and citation omitted); 9 Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not See Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 10 succumb to the temptation to play doctor and make their own 11 independent medical findings”); Day v. Weinberger, 522 F.2d 1154, 1156 12 (9th Cir. 1975) (an ALJ is forbidden from making his or her own 13 medical assessment beyond that demonstrated by the record). 14 than adopting his own lay assessment of Plaintiff’s limitations, the 15 ALJ should have ordered an examination and evaluation of Plaintiff by 16 a consultative physician. 17 F.3d 838, 843 (9th Cir. 2001) (where available medical evidence is 18 insufficient to determine the severity of the claimant’s impairment, 19 the ALJ should order a consultative examination by a specialist); 20 accord, Kish v. Colvin, 552 Fed. App’x 650 (2014); see generally Brown 21 v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (“[T]he ALJ has a 22 special duty to fully and fairly develop the record to assure the 23 claimant’s interests are considered. 24 claimant is represented by counsel.”). 25 /// 26 /// 27 /// 28 /// Rather See id.; see also Reed v. Massanari, 270 11 This duty exists even when the 1 III. Remand is Appropriate. 2 3 Because the circumstances of this case suggest that further 4 administrative review could remedy the ALJ’s errors, remand is 5 appropriate. 6 see also INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 7 administrative determination, the proper course is remand for 8 additional agency investigation or explanation, except in rare 9 circumstances); Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) 10 (court will credit-as-true medical opinion evidence only where, inter 11 alia, “the record has been fully developed and further administrative 12 proceedings would serve no useful purpose”); Harman v. Apfel, 211 F.3d 13 1172, 1180-81 (9th Cir. 2000) (remand for further proceedings rather 14 than for the immediate payment of benefits is appropriate where there 15 are “sufficient unanswered questions in the record”). 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 12 1 CONCLUSION 2 3 For all of the foregoing reasons,3 Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: December 4, 2014. 10 11 _____________/S/________________ _ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. “[E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled.” See Garrison v. Colvin, 759 F.3d at 1021. 13
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