Joel E Duenas v. Carolyn W Colvin, No. 5:2014cv01399 - Document 20 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. (twdb)
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Joel E Duenas v. Carolyn W Colvin Doc. 20 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 JOEL E. DUENAS, Plaintiff, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) Case No. EDCV 14-01399-DFM ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) ) Plaintiff Joel E. Duenas (“Plaintiff”) appeals the final decision of the Administrative Law Judge (“ALJ”) denying his applications for disability benefits. For the reasons discussed below, the Court concludes that the ALJ did not provide either specific and legitimate reasons for giving little weight to the opinion of Plaintiff’s treating physician or clear and convincing reasons for discrediting Plaintiff’s testimony. The ALJ’s decision is therefore reversed and the matter is remanded for further proceedings consistent with this opinion. I. FACTUAL AND PROCEDURAL BACKGROUND On April 25, 2011, a truck hit Plaintiff on the side of a freeway while he was helping a friend fix a blown tire. Trucker dead, pedestrian hurt in crash, Dockets.Justia.com 1 Riverside Press-Enterprise, Apr. 26, 2011, http://www.pe.com/articles/ 2 year-612510-old-driver.html. On August 5, 2011, Plaintiff filed applications for 3 Social Security disability insurance and supplemental security income benefits, 4 alleging that he became unable to work on March 25, 2011. Administrative 5 Record (“AR”) 174-82.1 After a hearing in February 2013, the ALJ found that 6 Plaintiff had the following severe impairments: degenerative disc disease of the 7 lumbar and thoracic spine; corrected fractured nose; bone bruise of the right 8 knee; and right shoulder issues, including a cyst in the right shoulder. AR 25. 9 The ALJ found that despite these impairments, Plaintiff retained the residual 10 functional capacity (“RFC”) to perform a range of light work with several 11 additional limitations. AR 28-29. After concluding that Plaintiff was unable to 12 perform his past relevant work as a security guard, door-to-door salesperson, 13 and construction worker, the ALJ concluded that Plaintiff was not disabled 14 because Plaintiff was capable of working as a gate guard, call-out operator, or 15 surveillance systems monitor despite his impairments. AR 37-39. 16 II. 17 ISSUES PRESENTED 18 The parties dispute whether the ALJ erred in: (1) rejecting the opinion of 19 Plaintiff’s treating physician; and (2) evaluating Plaintiff’s credibility. See Joint 20 Stipulation (“JS”) at 4. 21 /// 22 /// 23 24 25 26 27 28 1 The record is unclear about why Plaintiff claimed a disability onset date one month before the accident. Plaintiff indicates that he stopped working on March 25, 2011 “because of [his] condition(s),” which he indicates are “injuries due to auto accident.” AR 212; see also AR 272 (“The claimant last worked as a security guard on April 25, 2011 and stopped working because he was hit by a truck.”). 2 1 III. 2 DISCUSSION 3 A. Plaintiff’s Treating Physician 4 1. Background 5 From May 2011 through the February 2013 hearing, Plaintiff was 6 treated by Dr. Naresh (Nick) Sharma, an orthopedist. Dr. Sharma initially 7 evaluated Plaintiff a month after the accident, diagnosing him with lumbar 8 sprain and strain with possible lumbar radiculopathy, right shoulder 9 impingement with possible rotator cuff pathology, and cervical sprain and 10 strain. AR 317. Dr. Sharma ordered MRIs and prescribed pain medications 11 and physical therapy. AR 318-19. A month later, Dr. Sharma re-evaluated 12 Plaintiff after reviewing the MRI results and concluded that “I do not think he 13 is a surgical candidate.” AR 325. Dr. Sharma prescribed continued pain 14 medications and physical therapy. Id. Dr. Sharma continued to evaluate and 15 treat Plaintiff on a near-monthly basis throughout the rest of 2011, 2012, and 16 into 2013. AR 326-48, 483-502, 576-88. 17 In February 2013, Dr. Sharma completed a one-page “Physical 18 Capacities Evaluation.” AR 504. As the ALJ noted, Dr. Sharma found 19 limitations “that would preclude [Plaintiff] from working at the level of 20 substantial gainful activity.” AR 36. Dr. Sharma’s treatment reports also 21 frequently included the assessment that Plaintiff was not able to work. See, 22 e.g., AR 495 (“[Plaintiff], I feel, is not capable of returning to any work.”); AR 23 582 (“I do not think he will be able to return to any gainful occupation.”). 24 After giving great weight to the contradictory findings of a non- 25 examining medical expert, the ALJ gave “little weight” to Dr. Sharma’s 26 opinions, finding that they were “brief, conclusory, and inadequately 27 supported by clinical findings.” AR 36. The ALJ continued by stating that 28 “[a]s an opinion on an issue reserved to the Commissioner,” Dr. Sharma’s 3 1 opinions are “not entitled to controlling weight . . . and are not given special 2 significance.” Id. The ALJ went on to specify how Dr. Sharma’s opinions were 3 inconsistent with the objective medical evidence, “which shows [Plaintiff] to 4 be treated conservatively with prescription medications, epidural injections, 5 and physical therapy despite complaints of pain . . . [with] no surgery 6 recommended for his conditions.” Id. Further, the ALJ noted, Dr. Sharma’s 7 opinions are “also inconsistent with [Plaintiff’s] admitted activities of daily 8 living.” Id. Finally, the ALJ noted that Dr. Sharma examined Plaintiff in the 9 context of a personal injury claim, “which affects the credibility and relevance 10 of his opinions.” AR 37. 11 2. Applicable Law 12 Three types of physicians may offer opinions in Social Security cases: 13 those who directly treated the plaintiff, those who examined but did not treat 14 the plaintiff, and those who did not treat or examine the plaintiff. See 20 15 C.F.R. §§ 404.1527(c), 416.927(c); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 16 1996). A treating physician’s opinion is generally entitled to more weight than 17 that of an examining physician, which is generally entitled to more weight than 18 that of a non-examining physician. Lester, 81 F.3d at 830. Thus, the ALJ must 19 give specific and legitimate reasons for rejecting a treating physician’s opinion 20 in favor of a non-treating physician’s contradictory opinion or an examining 21 physician’s opinion in favor of a non-examining physician’s opinion. Orn v. 22 Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Lester, 81 F.3d at 830-31. If the 23 treating physician’s opinion is uncontroverted by another doctor, it may be 24 rejected only for “clear and convincing” reasons. See Lester, 81 F.3d 821, 830 25 (9th Cir. 1996) (citing Baxter v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991)). 26 However, “[t]he ALJ need not accept the opinion of any physician, including a 27 treating physician, if that opinion is brief, conclusory, and inadequately 28 supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th 4 1 Cir. 2002); accord Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). 2 The factors to be considered by the adjudicator in determining the weight to 3 give a medical opinion include: “[l]ength of the treatment relationship and the 4 frequency of examination” by the treating physician; and the “nature and 5 extent of the treatment relationship” between the patient and the treating 6 physician. Orn, 495 F.3d at 631; see also 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), 7 416.927(d)(2)(i)-(ii). 8 3. Analysis 9 The Court finds that at least three of the reasons offered by the ALJ for 10 giving little weight to Dr. Sharma’s opinion are not specific and legitimate. 11 First, although “an ALJ may discredit treating physicians’ opinions that are 12 conclusory, brief, and unsupported by the record as a whole . . . or by objective 13 medical findings,” Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 14 2004), the record here does not support the ALJ’s finding (AR 36) that Dr. 15 Sharma’s opinion was “brief, conclusory, and inadequately supported by 16 clinical findings.” Not only has this kind of non-specific language been 17 criticized by the Ninth Circuit, see Embry v. Bowen, 849 F.2d 418, 421-22 (9th 18 Cir. 1988), the record also does not support the ALJ’s finding that Dr. 19 Sharma’s opinion was not adequately supported by objective medical findings. 20 In particular, Dr. Sharma’s treatment records consistently reflect clinical 21 findings that support the imposed limitations, such as positive straight-leg 22 raising tests. See AR 315, 328, 495, 578. Moreover, a CAT scan of Plaintiff’s 23 lumbar spine in 2012 identified a compression fracture of his T8 vertebrae, see 24 AR 400, and an MRI done in 2011 showed a 4-5 mm disk bulge in Plaintiff’s 25 lower back, see AR 351. In light of these diagnostic results and Dr. Sharma’s 26 clinical findings, the Court is unable to find that substantial evidence supports 27 the ALJ’s finding that Dr. Sharma’s opinion was inadequately supported by 28 objective medical findings. 5 1 Additionally, the ALJ discounted Dr. Sharma’s opinion because he 2 offered conclusions about Plaintiff’s ability to work. AR 36. It is true that a 3 treating physician’s statement on an issue reserved to the Commissioner, such 4 as the ultimate determination of whether a claimant is disabled, is not binding 5 on the ALJ or entitled to special weight. See McLeod v. Astrue, 640 F.3d 881, 6 885 (9th Cir. 2011) (“The law reserves the disability determination to the 7 Commissioner.”); Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) 8 (“Although a treating physician’s opinion is generally afforded the greatest 9 weight in disability cases, it is not binding on an ALJ with respect to the 10 existence of an impairment or the ultimate determination of disability.” 11 (citation omitted)). The ALJ was, therefore, not bound by Dr. Sharma’s 12 assertions that Plaintiff was unable to work. However, the fact that a treating 13 physician rendered an opinion on the ultimate issue of disability does not 14 relieve the Commissioner of the obligation to state specific and legitimate 15 reasons supported by substantial evidence for rejecting the balance of a treating 16 physician’s opinion. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998); 17 Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir.1993). This reason, therefore, 18 was insufficient to reject Dr. Sharma’s opinion about Plaintiff’s limitations. 19 Finally, the ALJ appeared to discount Dr. Sharma’s opinion because he 20 “examined [Plaintiff] solely in the context of a personal injury claim.” AR 37. 21 Without evidence of actual impropriety, this observation is not a legitimate 22 reason to discount Dr. Sharma’s opinion. Lester, 81 F.3d at 832 (“The purpose 23 for which medical reports are obtained does not provide a legitimate basis for 24 rejecting them.”); Reddick, 157 F.3d at 726 (“Our opinions reveal that the 25 mere fact that a medical report is provided at the request of counsel or, more 26 broadly, the purpose for which an opinion is provided, is not a legitimate basis 27 for evaluating the reliability of the report.”); McNeill v. Astrue, No. 10-1090, 28 2011 WL 871478, at *5 (C.D. Cal. Mar. 14, 2011) (“That [doctor] evaluated 6 1 plaintiff in the context of civil litigation . . . is not a valid reason to discount his 2 opinion.”). Although the ALJ also cited Plaintiff’s activities of daily living and his 3 4 conservative treatment history as reasons for discounting Dr. Sharma’s 5 opinion, the Court has, for the reasons discussed below, see Section B., infra, 6 reservations about those findings as well. The Court accordingly finds that the 7 reasons offered by the ALJ for rejecting the opinion of Plaintiff’s treating 8 physician are not specific and legitimate, especially in light of the additional 9 records submitted to the Appeals Council. 10 B. Plaintiff’s Credibility 11 1. Background 12 At the hearing, Plaintiff testified that he was not working because of 13 back and leg pain. AR 55. He also told the ALJ that he was drowsy because of 14 his pain medication. Id. He indicated that he was taking four to eight 350 mg 15 hydrocodone and two to four 350 mg Soma per day to manage the spasms and 16 pain. AR 49-50. His lawyer asked him if he could work at a job where he had 17 to “look[] at videos and if you saw something irregular all you had to do is 18 pick up the phone and call security.” Plaintiff said that due to his “back pain . . 19 . [he has] to lay down at least for an hour out of the day, two hours.” AR 56. 20 In September 2011, Plaintiff filled out a report that provide the following 21 information about his daily living (“ADL”): he takes care of his own 22 grooming; he only goes outside to go to physical or mental therapy or his 23 primary physician and usually needs someone to accompany him; at home he 24 naps or plays video games; his sister cooks for him except twice a week when 25 he makes his own frozen dinners; walking and physical therapy are tiring; he is 26 unable to do any chores because they are tiring, although his sister encourages 27 him to do dishes; he is able to drive but does not because it frightens him; he 28 does not do any shopping; and he can only walk for 10 minutes before needing 7 1 rest. AR 239-46. Plaintiff told an examining psychiatrist in November 2011 2 that he was able to handle his person grooming, take care of household chores, 3 cook, make snacks, go to the store, and run errands. AR 272. He said his 4 hobbies included watching television. Id. Although he denied any significant 5 activities, he indicated his “outside activities include running, bicycle riding, 6 and hiking.” Id. 7 The ALJ found that the Plaintiff’s impairments could reasonably be 8 expected to cause the alleged symptoms, but that Plaintiff’s statements 9 concerning the intensity, persistence and limiting effects of these symptoms 10 were not entirely credible. AR 30. The ALJ cited the following reasons for 11 discounting Plaintiff’s credibility: (1) his allegations “are inconsistent with the 12 objective medical evidence”; (2) Plaintiff never went to the emergency room or 13 a county hospital notwithstanding allegations of a pain level of 7 or 8 with 14 medication and 10 without medication; (3) Plaintiff did not seek no-cost 15 treatment such as treatment at a public health clinic; and (4) Plaintiff engaged 16 in “a somewhat normal level of daily activity and interaction,” which 17 “diminishes the credibility of the claimant’s allegations of functional 18 limitations.” Id. 19 2. Applicable Law 20 To determine whether a claimant’s testimony about subjective pain or 21 symptoms is credible, an ALJ must engage in a two-step analysis. Vasquez v. 22 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. Astrue, 504 23 F.3d 1028, 1035-36 (9th Cir. 2007)). First, the ALJ must determine whether 24 the claimant has presented objective medical evidence of an underlying 25 impairment which could reasonably be expected to produce the alleged pain or 26 other symptoms. Lingenfelter, 504 F.3d at 1036. “[O]nce the claimant 27 produces objective medical evidence of an underlying impairment, an 28 adjudicator may not reject a claimant’s subjective complaints based solely on a 8 1 lack of objective medical evidence to fully corroborate the alleged severity of 2 pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). To the 3 extent that an individual’s claims of functional limitations and restrictions due 4 to alleged pain are reasonably consistent with the objective medical evidence 5 and other evidence, the claimant’s allegations will be credited. SSR 96-7p, 6 1996 WL 374186 at *2 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)). 7 If the claimant meets the first step and there is no affirmative evidence of 8 malingering, the ALJ must provide specific, clear and convincing reasons for 9 discrediting a claimant’s complaints. Robbins v. Soc. Sec. Admin., 466 F.3d 10 880, 883 (9th Cir. 2006). “‘General findings are insufficient; rather, the ALJ 11 must identify what testimony is not credible and what evidence undermines 12 the claimant’s complaints.’” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 13 1998) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)). The ALJ 14 must consider a claimant’s work record, observations of medical providers and 15 third parties with knowledge of claimant’s limitations, aggravating factors, 16 functional restrictions caused by symptoms, effects of medication, and the 17 claimant’s daily activities. Smolen v. Chater, 80 F.3d 1273, 1283-84 & n.8 (9th 18 Cir. 1996)). The ALJ may also consider an unexplained failure to seek 19 treatment or follow a prescribed course of treatment and employ other 20 ordinary techniques of credibility evaluation. Id. (citations omitted). 21 3. Analysis 22 Here, because there was no evidence of malingering in the record, the 23 ALJ was required to cite clear and convincing reasons for discounting 24 Plaintiff’s credibility. See Robbins, 466 F.3d at 883. Having carefully reviewed 25 the record, the Court finds that the ALJ’s reasons for rejecting Plaintiff’s 26 credibility about his pain and limitations were not clear and convincing 27 reasons that are supported by substantial evidence. 28 /// 9 1 As an initial matter, even if the Court agreed that the objective evidence 2 did not support the severity of Plaintiff’s claims, an ALJ may not discredit a 3 claimant’s credibility on that basis alone. See Bunnell, 947 F.2d at 346-47 4 (noting that ALJ “may not discredit a claimant's testimony of pain and deny 5 disability benefits solely because the degree of pain alleged by the claimant is 6 not supported by objective medical evidence”); Robbins, 466 F.3d at 883 (ALJ 7 may not disregard subjective symptom testimony “solely because it is not 8 substantiated affirmatively by objective medical evidence”); Burch v. Barnhart, 9 400 F.3d 676, 681 (9th Cir. 2005) (same). 10 Turning to the ALJ’s other findings, the Court cannot reconcile the 11 record in this case with the ALJ’s comments about Plaintiff’s failure to seek 12 treatment at the ER, a county hospital, or some other “no-cost” public health 13 clinic. Failure to seek medical care can be substantial evidence undermining 14 claims of debilitating pain. See Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 15 1989). Here, however, the record shows that Plaintiff has regularly and 16 consistently sought treatment since his accident. The record reflects numerous 17 orthopedic evaluations and physical therapy appointments from the months 18 after the accident through February 2013. See AR 308-355, 483-503, 515-537, 19 576-588. During 2012, it reflects several epidural injections performed under 20 general anesthesia in operation-like settings. See AR 442-55, 560, 563; see also 21 Oldham v. Astrue, No. 09-1431, 2010 WL 2850770, at *9 (C.D. Cal. July 19, 22 2010) (finding that similar treatments “render any argument that Plaintiff’s 23 treatment was ‘conservative’ unconvincing”). 24 Similarly, the Court cannot find support in the record for the ALJ’s 25 finding that Plaintiff’s symptom testimony was undermined by his statements 26 about his daily activities. The record shows that Plaintiff had fairly modest 27 daily activities, such as caring for his personal hygiene, watching television and 28 playing video games, making frozen dinners twice a week, and spending time 10 1 with his girlfriend at home.2 Activities such as these are not sufficient to 2 undermine claimant’s testimony about his limitations. See Vertigan v. Halter, 3 260 F.3d 1044, 1050 (9th Cir. 2001) (holding that assisted grocery shopping, 4 walking for an hour for exercise, swimming, socializing with friends, watching 5 television, and reading were not inconsistent with disabling pain); Saunders v. 6 Astrue, 433 F. App’x 531, 533 (9th Cir. 2011) (concluding that substantial 7 evidence did not support ALJ’s determination to discredit claimant’s pain 8 testimony on the basis of daily activities because “we have held consistently 9 that, activities such as light household chores, cooking meals, and grocery 10 shopping are activities that do not necessarily translate to the work 11 environment”); Colquitt v. Astrue, No. 09-2099, 2010 WL 4718749, at *3 12 (C.D. Cal. Nov. 15, 2010) (finding ALJ erred in discounting credibility when 13 claimant did limited cooking, could but did not drive, did laundry and grocery 14 shopping with daughters’ assistance, and sometimes walked with 15 grandchildren to pool). 16 Thus, although the ALJ provided an analysis of the record to support his 17 finding that Plaintiff’s statements about the limitations presented by his 18 impairments were not entirely credible, the ALJ failed to state any valid reason 19 apart from the objective medical evidence for discounting Plaintiff’s credibility. 20 Accordingly, the Court finds that the ALJ failed to provide clear and 21 convincing reasons for discounting Plaintiff’s subjective complaints of pain and 22 23 24 25 26 27 28 2 The ALJ also notes that Plaintiff told an examining psychiatrist that his outside activities include running, biking, and hiking. AR 30. The next paragraph of that report, however, also states that Plaintiff “denied any significant activities.” See AR 272. It is thus unclear from the psychiatrist’s report whether Plaintiff was indicating that he engaged in running, biking, and hiking after the accident or that he used to engage in those activities before he was injured. 11 1 limitations. 2 C. 3 Whether to Remand for Further Proceedings The choice whether to reverse and remand for further administrative 4 proceedings, or to reverse and simply award benefits, is within the discretion of 5 the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (holding that 6 the district court’s decision whether to remand for further proceedings or 7 payment of benefits is discretionary and is subject to review for abuse of 8 discretion). The Ninth Circuit has observed that “the proper course, except in 9 rare circumstances, is to remand to the agency for additional investigation or 10 explanation.” Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (quoting 11 INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)). 12 Where, as here, a claimant contends that he is entitled to an award of 13 benefits because of an ALJ’s failure to properly consider a physician’s opinion 14 or the claimant’s testimony, the Court applies a three-step framework. First, 15 the Court asks whether the ALJ failed to provide legally sufficient reasons for 16 rejecting physician’s opinion or the claimant’s testimony. Treichler v. Comm’r 17 Soc. Sec., 775 F.3d 1090, 1103 (9th Cir. 2014). Second, the Court determines 18 “whether further administrative proceedings would be useful,” asking 19 “whether the record as a whole is free from conflicts, ambiguities, or gaps, 20 whether all factual issues have been resolved, and whether the claimant’s 21 entitlement to benefits is clear under the applicable legal rules.” Id. at 1103-04. 22 This Court must “assess whether there are outstanding issues requiring 23 resolution before considering whether to hold that the claimant’s testimony is 24 credible as a matter of law.” Id. at 1105. Third, if the Court concludes that no 25 outstanding issues remain and further proceedings would not be useful, the 26 Court may find the relevant testimony credible as a matter of law and then 27 determine whether the record, taken as a whole, leaves “not the slightest 28 uncertainty as to the outcome of the proceeding.” Id. at 1101 (citations 12 1 omitted). Only when all three elements are satisfied does a case raise the “rare 2 circumstances” that allow the Court to exercise its discretion to remand for an 3 award of benefits. Id. 4 Here, the Court cannot find that the record taken as a whole leaves not 5 the slightest uncertainty as to the outcome of the proceeding. Further 6 administrative proceedings would therefore be useful. Remand is appropriate 7 for the ALJ to reassess his credibility determination of Plaintiff and his 8 treatment of the opinion of Plaintiff’s treating physician consistent with this 9 opinion. 10 IV. 11 CONCLUSION 12 For the reasons stated above, the decision of the Social Security 13 Commissioner is REVERSED and the action is REMANDED for further 14 proceedings consistent with this opinion. 15 16 Dated: September 17, 2015 ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 13
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