Rosa Alicia Cabral v. Carolyn W Colvin, No. 5:2014cv01354 - Document 26 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish. IT IS THEREFORE ORDERED that Judgment be entered reversing the Commissioner's decision and remanding this matter for further administrative proceedings consistent with this Memorandum Opinion and Order. (ec)
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Rosa Alicia Cabral v. Carolyn W Colvin Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROSA ALICIA CABRAL, Plaintiff, 12 v. 13 14 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 17 ) Case No. EDCV 14-01354- GJS ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) ) ) 18 I. 19 20 PROCEEDINGS Plaintiff Rosa Alicia Cabral (“Plaintiff”) filed a complaint seeking review of 21 the Commissioner’s partial denial of her application for Disability Insurance 22 Benefits and Supplemental Security Income. The parties filed consents to proceed 23 before the undersigned United States Magistrate Judge, and a Joint Stipulation 24 addressing disputed issues in the case. The Court has taken the Joint Stipulation 25 under submission without oral argument. 26 27 28 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION Plaintiff asserts disability since April 14, 2006, based on multiple severe Dockets.Justia.com 1 impairments. Primarily at issue in this appeal are impairments related to 2 degenerative disc disease of the lumbar and cervical spine and status post lumbar 3 fusion in October 2008 and hardware removal in 2010, and how these impairments 4 impact or impacted Plaintiff’s ability to stoop and bend. 5 After a hearing, an Administrative Law Judge (“ALJ”) applied the five-step 6 sequential evaluation process and found that Plaintiff was disabled for the period 7 from April 14, 2006, to August 22, 2011 (AR 1 26, ¶ 11). See 20 C.F.R. § 8 404.1520(b)-(g)(1).2 The ALJ then used the eight and seven-step processes to find 9 that Plaintiff’s disability ceased. 20 C.F.R. §§404.1594, 416.994. The ALJ found 10 that Plaintiff did not develop or acquire any new medically determinable 11 impairments since August 23, 2011 (AR 26, ¶ 12), and that the impairments still 12 did not meet or equal any “listed” impairment (AR 26, ¶ 13). The ALJ then found 13 medical improvement as of August 23, 2011, and that the improvement related to 14 the ability to perform work. (AR 28, ¶ 15). For the period following August 23, 15 2011, the ALJ assessed Plaintiff as having the Residual Functional Capacity 16 (“RFC”) to perform light work, with additional limitations. (AR 28, ¶ 16). At 17 issue here is the ALJ’s finding that Plaintiff is limited to work that could 18 “occasionally” require her to “stoop, kneel, crouch, and crawl.” (Id.). 19 1 20 2 21 22 23 24 25 26 27 “AR” citations are to the Administrative Record. To decide if a Plaintiff is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 404.1520. The steps are as follows: (1) Is the Plaintiff presently engaged in substantial gainful activity? If so, the Plaintiff is found not disabled. If not, proceed to step two; (2) Is the Plaintiff’s impairment severe? If not, the Plaintiff is found not disabled. If so, proceed to step three; (3) Does the Plaintiff’s impairment meet or equal the requirements of any impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the Plaintiff is found disabled. If not, proceed to step four; (4) Is the Plaintiff capable of performing her past work? If so, the Plaintiff is found not disabled. If not, proceed to step five; (5) Is the Plaintiff able to do any other work? If not, the Plaintiff is found disabled. If so, the Plaintiff is found not disabled. 20 C.F.R. § 404.1520(b)-(g)(1). 28 2 1 The ALJ accepted testimony from a vocational expert (“VE”), and found, 2 based on an RFC including the ability to bend and stoop occasionally, that Plaintiff 3 was not disabled after August 23, 2011. The Appeals Council denied Plaintiff’s 4 request for review. AR 4-10. 5 III. 6 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), the Court reviews the Administration’s decision 7 to determine if: (1) the Administration’s findings are supported by substantial 8 evidence; and (2) the Administration used correct legal standards. See Carmickle 9 v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 10 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 12 Perales, 402 U.S. 389, 401, 91 S. Ct. 1420 (1971) (citation and quotations 13 omitted); see also Hoopai, 499 F.3d at 1074. 14 15 IV. DISCUSSION Plaintiff contends that the ALJ erred (1) by finding that Plaintiff’s testimony 16 was less than credible and (2) in assessing Plaintiff’s ability to bend and stoop, 17 which, according to the testimony of the VE, was required for Plaintiff to perform 18 any of the jobs identified by the VE at the hearing. (AR 74076). As set forth 19 below, the Court finds that the ALJ properly assessed Plaintiff’s credibility, but 20 remands for further proceedings because of ambiguity in the record leading to the 21 ALJ’s failure to properly “translate” medical opinions given in the context of a 22 workers’ compensation claim to the Social Security context. 23 A. The ALJ Properly Evaluated Plaintiff’s Credibility 24 Once a disability Plaintiff produces evidence of an underlying physical or 25 mental impairment that is reasonably likely to be the source of her subjective 26 symptoms, the adjudicator is required to consider all subjective testimony as to the 27 severity of the symptoms. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); 28 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also 20 3 1 C.F.R. §§ 404.1529(a), 416.929(a) (explaining how pain and other symptoms are 2 evaluated). Although the ALJ may then disregard the subjective testimony she 3 considers not credible, she must provide specific, convincing reasons for doing so. 4 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); see also Moisa, 367 5 F.3d at 885 (stating that in the absence of evidence of malingering, an ALJ may not 6 dismiss the subjective testimony of Plaintiff without providing "clear and 7 convincing reasons"); Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) 8 (reaffirming clear and convincing standard and noting that the standard “is not an 9 easy requirement to meet”). 10 11 12 13 14 In evaluating subjective symptom testimony, the ALJ must consider “all of the evidence presented,” including the following factors: (1) the Plaintiff’s daily activities; (2) the location, duration, frequency, and intensity of pain and other symptoms; (3) precipitating and aggravating factors, such as movement, activity, and environmental conditions; (4) the type, dosage, effectiveness and adverse side 15 effects of any pain medication; (5) treatment, other than medication, for relief of 16 17 18 19 pain or other symptoms; (6) any other measures used by the Plaintiff to relieve pain or other symptoms; and (7) other factors concerning the Plaintiff’s functional restrictions due to such symptoms. See 20 C.F.R. §§ 404.1529(c)(3), 20 416.929(c)(3); see also Social Security Ruling (“SSR”) 96-7p, 1996 WL 374186, 21 at *3 (clarifying the Commissioner’s policy regarding the evaluation of pain and 22 other symptoms). The ALJ also may employ “ordinary techniques of credibility 23 evaluation,” considering such factors as (8) the Plaintiff’s reputation for 24 truthfulness; (9) inconsistencies within the Plaintiff's testimony, or between the 25 Plaintiff's testimony and the Plaintiff’s conduct; (10) a lack of candor by the 26 Plaintiff regarding matters other than the Plaintiff's subjective symptoms; (11) the 27 Plaintiff’s work record; and (12) information from physicians, relatives, or friends 28 concerning the nature, severity, and effect of the Plaintiff's symptoms. See Light v. 4 1 Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997); Fair v. Bowen, 885 F.2d 2 597, 604 n.5 (9th Cir. 1989). 3 Here the ALJ found that plaintiff underwent surgery for her alleged 4 impairment, which “certainly suggests that the symptoms were genuine.” The ALJ 5 also found, however, that subsequent medical records demonstrated that the 6 surgery was generally successful in relieving Plaintiff’s symptoms. Moreover, the 7 ALJ did not reject Plaintiff’s testimony out of hand. Rather, she found that “the 8 Plaintiff’s allegations concerning the intensity, persistence, and limiting effects of 9 her symptoms were less than fully credible,” because (among other reasons) 10 11 12 13 14 Plaintiff did not fully cooperate with one of her medical assessments. (AR 30). (Plaintiff did not make full effort or cooperate with certain tests during Dr. Sadoff’s examination). Plaintiff herself also noted that she had improved, and testified about numerous daily activities that also support a finding that her pain was being managed more effectively than before. Finally, Plaintiff’s treating 15 physicians and others evaluating her for purposes of workers’ compensation 16 17 18 19 cleared her to return to work. 3 (AR 1318-23; 54; 1513-20). The factual support on which the ALJ relied and her analysis as set forth in her decision meet the clear and convincing standard of review. 20 B. An Ambiguity In The Record Requires Remand 21 The ALJ was presented with medical evaluations from three physicians that 22 23 24 25 26 27 relate to the issue at hand, i.e., whether the ALJ properly discounted a portion of one physician’s opinion in assessing Plaintiff’s RFC. The three physicians are: Dr. Guy Gottschalk, Plaintiff’s treating physician in relation to her workers’ compensation claim; Dr. Armin Sadoff, who conducted an agreed medical 3 Plaintiff’s brief also argues that the ALJ improperly rejected the testimony of Jennie Gonzales. (Plaintiff’s Brf. at 24.) As the Commissioner correctly notes, no such witness appears anywhere in the record or in the ALJ’s opinion. 28 5 1 examination and issued a report, also in the workers’ compensation context; and 2 Dr. Siciarz, another workers’ compensation consultative physician. As the parties 3 are well-versed in the record evidence, the Court summarizes each of these 4 doctor’s findings very briefly with respect to the issue of whether the ALJ properly 5 determined Plaintiff’s post-August 2011 RFC to allow occasional bending and 6 stooping. 7 The consultative physician, Dr. Siciarz, performed an evaluation of Plaintiff 8 that went into significant detail, finding that she had several limitations. Of note, 9 however, Dr. Siciarz found that there Plaintiff had no postural limitations, which 10 suggests no limits on bending and stooping. (AR 1310 (“Postural Function: 11 Unlimited in all aspects”)). Given Plaintiff’s medical history, which includes back 12 surgery to alleviate pain, a finding of no limitations is somewhat surprising. And, 13 in fact, while noting the lack of postural limitations in Dr. Siciarz’s report, the RFC 14 determined by the ALJ nevertheless limited bending and stooping to “occasional.” 15 (AR 28). 16 The AME, Dr. Sadoff, found “28% Whole Person Impairment” in the 17 workers’ compensation context. He also recommended, as a prophylactic measure 18 to prevent pain, that Plaintiff be “limited to light work with standing and walking 19 positions with minimal demands of physical effort.” (AR 1518). Dr. Sadoff’s use 20 of this latter phrase appears to be a reference to the April 1997 “Schedule for 21 Rating Permanent Disabilities” (specifically the Spine and Torso Guidelines) 22 published by the State of California for evaluation of Workers’ Compensation 23 claims. 4 Plaintiff argues that “minimal demands of physical effort” means no 24 bending and stooping, because the “milder” categories of disability in the 25 26 27 4 The wording of the 1997 Schedule that Dr. Sadoff used is no longer contained in the current Schedule, which was applicable at the time of his evaluation. 28 6 1 Schedule, i.e., disability precluding “heavy work” and disability precluding 2 “substantial work,” assume a loss of 50% and 75%, respectively, of the pre-injury 3 capacity to perform “such activities of bending [and] stooping.” Id. A reasonable 4 inference, according to Plaintiff, is that the “light work” category, which does not 5 specifically reference bending and stooping but contains the “minimal demands of 6 physical effort” language, would mean no bending or stooping (i.e., following the 7 pattern of 25% reduction at each level, a reduction to zero percent). In any event, 8 Dr. Sadoff does not specifically mention Plaintiff’s capacity for bending or 9 stooping. 10 Plaintiff’s treating physician for her workers’ compensation claim, Dr. 11 Gottschalk, was asked by Plaintiff’s counsel to provide an evaluation of Plaintiff’s 12 disability, and to include in his evaluation a review of past treatment and medical 13 records. (AR 1513). Dr. Gottschalk had been treating Plaintiff since 2008, 5 and 14 had, prior to the January 18, 2012 evaluation, never mentioned any limitations 15 relating to “bending” or “stooping.” In his January 2012 evaluation, he reviewed, 16 among other medical records, the evaluation of Dr. Sadoff. Like Dr. Sadoff, Dr. 17 Gottschalk opined that Plaintiff had improved to where she was “capable of gainful 18 employment,” but was not capable of returning to her previous work activities. 19 (AR 1517). He adopted Dr. Sadoff’s findings as part of his own evaluation, and 20 then further noted as a “comment,” without explanation, that Dr. Sadoff’s 21 limitation to work requiring only the “minimal demands of physical effort” meant 22 “no bending and stooping.” (AR 1518). 23 The ALJ gave “substantial weight” to Dr. Gottschalk’s opinion, but 24 specifically discounted the limitation to “no bending and stooping” in crafting 25 Plaintiff’s RFC. The ALJ explained that the specific limitation was not supported 26 27 5 Plaintiff’s workers’ compensation claim arose out of a March or April 2006 accident in which she fell and injured her back. (AR 1515). 28 7 1 by the medical records, noting, inter alia, the absence of any postural limitations in 2 Dr. Siciarz’s evaluation, and both the doctors’ and Plaintiff’s statements that she 3 had improved (specifically, that the surgery had helped and she was better able to 4 manage pain). The ALJ also noted that Plaintiff was, by Dr. Gottschalk’s 2012 5 evaluation, “permanent and stationary” (i.e., she had essentially reached a stable 6 point of no further improvement) and her pain was being managed conservatively. 7 (AR 28 and fn.3). 8 Two intertwined legal principles are implicated in the analysis of whether 9 the ALJ defined the proper RFC for Plaintiff: (1) whether she articulated valid 10 reasons for rejecting the portion of the treating physician’s opinion regarding 11 bending and stooping and (2) whether she properly “translated” the underlying 12 medical opinions of Drs. Sadoff and Gottschalk from the Workers’ Compensation 13 context to the Social Security disability context. For the reasons stated below, the 14 Court finds that while the ALJ articulated reasons that would otherwise be 15 sufficient to discount the portion of Dr. Gottschalk’s opinion relating to bending 16 and stooping, it is unclear whether she properly translated the underlying medical 17 opinions on which she relied from the workers’ compensation setting to the Social 18 Security setting in setting forth her reasons. 19 To reject the uncontradicted opinion of a treating physician, the ALJ must 20 provide clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 21 1995). Even where a treating physician’s opinion is contradicted by another 22 doctor’s opinion, an ALJ may not reject the opinion without “specific and 23 legitimate reasons” that are supported by substantial evidence in the record. Id. at 24 830-31; Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); Orn v. Astrue, 495 25 F.3d 625, 632 (9th Cir. 2007). “This is so because, even when contradicted, a 26 treating or examining physician’s opinion is still owed deference and will often be 27 ‘entitled to the greatest weight . . . even if it does not meet the test for controlling 28 weight.’” Garrison, 759 F.3d at 1012 (quoting Orn, 495 F.3d at 633). 8 1 Here, Dr. Gottschalk’s opinion appears to be contradicted. One consultative 2 physician noted that Plaintiff had no postural limitations. And Dr. Sadoff’s 3 evaluation doesn’t say anything specifically about bending and stooping – that was 4 Dr. Gottschalk’s interpretation of Dr. Sadoff’s evaluation. The ALJ thus went on to 5 articulate reasons for discounting Dr. Gottschalk’s bending and stooping opinion. 6 She noted, inter alia, that the opinion was inconsistent with the medical record, 7 based in part on the absence of a similar limitation in any of the other physicians’ 8 opinions. The question becomes whether Dr. Sadoff, in workers’ compensation 9 terms, actually did say or mean to say that Plaintiff could not perform work 10 involving bending or stooping. The ALJ had a duty to figure this out, or to 11 supplement the record if necessary to determine the answer. 12 Proper evaluation of [workers’ compensation] medical opinions . . . 13 presents an extra challenge. The ALJ must “translate” terms of art 14 contained in such medical opinions into the corresponding Social 15 Security terminology in order to accurately assess the implication of 16 those opinions for the Social Security disability determination. . . . 17 While the ALJ’s decision need not contain an explicit “translation,” it 18 should at least indicate that the ALJ recognized the differences 19 between the relevant state workers’ compensation terminology, on the 20 one hand, and the relevant Social Security disability terminology, on 21 the other hand, and took those differences into account in evaluating 22 the medical evidence. 23 Booth v. Barnhart, 181 F. Supp. 2d 1099 (C.D. Cal. 2002) (internal citations and 24 quotation omitted). 25 As noted previously, Dr. Sadoff did not himself set forth what he meant by 26 “minimal demands of physical effort,” a term of art from the 1997 Workers’ 27 Compensation Schedule. And while the ALJ noted that all of the medical opinions 28 were made in the workers’ compensation context, and, thus, were not directly on 9 1 point to a Social Security disability determination, she did not address what Dr. 2 Sadoff’s opinion meant in terms of the bending and stooping required by the 3 various jobs in the national economy identified by the Vocational Expert.6 The 4 ALJ should have addressed this specifically where it directly impacted Plaintiff’s 5 RFC, supplementing the record, if necessary, by asking Dr. Sadoff himself. See, 6 e.g., Aragon v. Astrue, 2010 WL 4180574, at *3 (No. CV 10-0255-RC) (C.D. Cal. 7 2010) (“Accordingly, it is reasonable to infer that ‘a minimum of demands for 8 physical effort’ as set forth in the 1997 California workers’ compensation 9 guidelines definition of light work, contemplates that that the individual has lost at 10 least 75% of his pre-injury capacity for performing lifting, bending, stooping, 11 pushing, pulling, and similar physical activities. . . . Therefore, the ALJ erred in 12 failing to ‘adequately “translate” [the doctor’s] opinion into Social Security 13 terms.”) (internal citation omitted) (unpublished). Plaintiff requests that the Court credit the bending and stooping portion of 14 15 Dr. Gottschalk’s opinion as true and remand this matter for an immediate award of 16 benefits. A court has the discretion to credit as true improperly rejected evidence 17 and remand for payment of benefits where the following three factors are satisfied: 18 (1) the record has been fully developed and further administrative proceedings 19 would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient 20 reasons for rejecting evidence, whether Plaintiff testimony or medical opinion; and 21 (3) if the improperly discredited evidence were credited as true, the ALJ would be 22 required to find the Plaintiff disabled on remand. See Garrison, 759 F.3d at 1020; 23 see also Treichler v. Commissioner of Social Security Admin., 775 F.3d 1090, 24 1100-01 (9th Cir. 2014). However, even where all three factors of this “credit-as- 25 true” rule are met, the court retains discretion to remand for further proceedings 26 27 6 In fact, it is unclear whether the ALJ even recognized that Dr. Sadoff’s opinion was couched in a term of art that needed to be addressed. 28 10 1 “when the record as a whole creates serious doubt as to whether the Plaintiff is, in 2 fact, disabled within the meaning of the Social Security Act.” Garrison, 759 F.3d 3 at 1021; see also Strauss v. Comm’r of Social Sec. Admin., 635 F.3d 1135, 1138 4 (9th Cir. 2011) (“A Plaintiff is not entitled to benefits under the statute unless the 5 Plaintiff is, in fact, disabled, no matter how egregious the ALJ’s errors may be.”). 6 Where “an ALJ makes a legal error, but the record is uncertain and ambiguous, the 7 proper approach is to remand the case to the agency.” Treichler, 775 F.3d at 1105. 8 In this case, there are ambiguities in both the record evidence and the ALJ’s legal 9 reasoning which make remand for immediate payment of benefits improper. See 10 Garrison, 759 F.3d at 1020-21; see also Treichler, 775 F.3d at 1101, n. 5 (“[A] 11 court abuses its discretion if it remands for an award of benefits when not all 12 factual issues have been resolved.”). Accordingly, remand for additional 13 proceedings is appropriate. CONCLUSION AND ORDER 14 15 IT IS THEREFORE ORDERED that Judgment be entered reversing the 16 Commissioner’s decision and remanding this matter for further administrative 17 proceedings consistent with this Memorandum Opinion and Order. 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 21 DATED: October 29, 2015 __________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 11
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