Claudia D West v. Carolyn W Colvin, No. 5:2014cv02163 - Document 21 (C.D. Cal. 2016)
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 consideration consistent with this Memorandum Opinion and Order. (See document for further details.) (sbou)
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Claudia D West v. Carolyn W Colvin Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CLAUDIA D. WEST, 11 12 13 Plaintiff, v. 14 CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 14-2163-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration (“the Agency”), denying her application for Disability 20 Insurance Benefits and Supplemental Security Income. 21 the Administrative Law Judge (“ALJ”) erred when he rejected the 22 examining doctor’s opinion that she would need to take a ten-minute 23 break each hour she worked and when he found that she was not 24 credible. 25 the Court concludes that the ALJ erred and remands the case to the 26 Agency for further proceedings. (Joint Stip. at 5-7, 14-17.) She claims that For the following reasons, 27 28 Dockets.Justia.com 1 II. SUMMARY OF PROCEEDINGS 2 In October 2011, Plaintiff applied for DIB and SSI, alleging that 3 she had been disabled since December 31, 2008, due to chronic 4 obstructive pulmonary disease, carpal tunnel syndrome, and pain in her 5 back, legs, arms, and neck. 6 193, 355.) 7 reconsideration and she requested and was granted a hearing before an 8 ALJ. 9 (Administrative Record (“AR”) 30, 38-39, Her applications were denied initially and on (AR 136-37, 168-69, 193-205, 208.) In January 2013, she appeared with counsel and testified at the 10 hearing. 11 awarding benefits. 12 Appeals Council granted review and remanded the case to the ALJ for 13 further consideration. 14 hearing, at which Plaintiff again appeared with counsel. 15 In April 2014, the ALJ issued a decision denying benefits. 16 Plaintiff appealed to the Appeals Council, which denied review. 17 1-8.) 20 In June 2013, the ALJ issued a decision (AR 170-80.) Thereafter, on its own motion, the (AR 187-91.) On remand, the ALJ held another (AR 68-115.) (AR 9-22.) (AR She then filed this action. 18 19 (AR 27-67.) III. ANALYSIS A. The Examining Doctor’s Opinion Examining internist Bahaa Girgis and testifying medical expert 21 Harvey Alpern arrived at almost identical residual functional capacity 22 findings. 23 pounds occasionally and ten pounds frequently and could sit, stand, 24 and walk for six hours in an eight-hour workday. 25 Dr. Girgis, however, added an additional restriction, i.e., that 26 Plaintiff be allowed to take a ten-minute break every hour that she 27 was required to stand or walk. They both concluded that Plaintiff could lift and carry 20 (AR 530.) 28 2 (AR 73-74, 527-30.) 1 The ALJ claimed to give “significant weight, but not great 2 weight” to Dr. Girgis’ opinion but adopted Dr. Alpern’s instead. (AR 3 17, 20.) 4 because Dr. Alpern’s opinion was the most recent and most restrictive. 5 (AR 20.) The ALJ explained that he was deferring to Dr. Alpern 6 Plaintiff contends that the ALJ erred in rejecting Dr. Girgi’s 7 opinion that she needed a ten-minute break every hour she worked on 8 her feet. 9 the ALJ rightly relied on Dr. Alpern’s opinion because he considered 10 medical records Dr. Girgis had not and because Dr. Alpern’s findings 11 were the most restrictive. 12 reasons, the Court rejects the Agency’s arguments. 13 (Joint Stip. at 6.) The Agency disagrees. (Joint Stip. at 9-10.) It argues that For the following It is the province of the ALJ to resolve conflicts in the medical 14 evidence. 15 There are three types of doctors that supply that evidence: treating 16 doctors, examining doctors, and reviewing doctors. 17 equal, treating doctors are entitled to the greatest weight because 18 they are hired to cure and have more opportunity to know and observe 19 the patient. 20 followed by reviewing doctors. 21 830-31 (9th Cir. 1995). 22 opinion of any doctor and, where the opinion is contradicted, may 23 reject it for specific and legitimate reasons that are supported by 24 substantial evidence in the record. 25 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Id. at 1041. All things being Examining doctors are next on the list, See Lester v. Chater, 81 F.3d 821, ALJs, however, are not required to accept the Id. at 830. As a starting point, all things being equal, Dr. Girgis’ opinion 26 was entitled to more weight than Dr. Alpern’s because Dr. Girgis had 27 examined Plaintiff and Dr. Alpern had not. 28 Court reviews the ALJ’s decision to rely on Dr. Alpern. 3 Id. In that context, the 1 The ALJ’s finding that Dr. Alpern’s opinion was entitled to more 2 weight because it was the most restrictive is not supported by the 3 record. 4 that Dr. Girgis did not–-i.e., no ropes or ladders or work in an 5 environment with concentrated noxious dust, fumes, and irritants (AR 6 73-74)–-these restrictions are not at the heart of the ALJ’s decision. 7 What is is Plaintiff’s purported need to take a break for ten minutes 8 for every hour that she was required to stand or walk. 9 not believe that she would need a break, Dr. Girgis did. Though it is true that Dr. Alpern included some restrictions Dr. Alpern did So, at least 10 with regard to this limitation, Dr. Girgis’ opinion is more 11 restrictive than Dr. Alpern’s. 12 because, had the ALJ adopted it, it is likely that Plaintiff could not 13 have performed the jobs identified by the vocational expert. 14 the ALJ’s finding that Dr. Alpern’s opinion was more restrictive than 15 Dr. Girgis’ is not supported by the record and is rejected. 16 This restriction is significant As such, The second reason the ALJ gave for choosing Dr. Alpern’s January 17 2014 opinion over Dr. Girgis’ December 2011 opinion was that Dr. 18 Alpern had reviewed all of the medical records and Dr. Girgis had not. 19 (AR 19.) 20 Girgis did not take into account the medical records that were 21 generated after he prepared his December 2011 opinion. 22 Alpern testified at the hearing, he had not reviewed all of the 23 records, either. 24 had not reviewed exhibit 7F, which were records from March 13, 2013 to 25 October 16, 2013. 26 of Dr. Alpern’s review was significantly greater than that of Dr. 27 Girgis’ and that may be enough for the ALJ to accept Dr. Alpern’s 28 opinion and reject Dr. Girgis’ opinion. There is some support for this finding. Obviously, Dr. But, as Dr. He had only considered exhibits 1F through 6F and (AR 71.) Ultimately, it appears that the breadth 4 As it stands, however, it is 1 not clear to the Court whether the ALJ would have chosen to accept Dr. 2 Alpern’s opinion for this reason alone and, therefore, remand for 3 further consideration is warranted.1 4 B. 5 The ALJ’s Credibility Determination At the 2014 administrative hearing, Plaintiff testified that she 6 had fallen several times in the previous year because her legs had 7 given out and that she had hurt her arm in the process, rendering her 8 unable to comb her hair or lift even a gallon of milk. 9 90.) (AR 85-86, She also testified that she could not sleep because of her back 10 pain even though she took pain medication. 11 explained that, as a result of her limitations, she had to be cared 12 for by her son and daughter, who fixed her meals and took her out when 13 she needed to go somewhere. 14 could not sit down at a job or concentrate for any period of time. 15 (AR 97.) 16 a block because of back and leg pain. 17 (AR 88, 99.) (AR 86, 88, 98.) She According to Plaintiff, she She also claimed that she could not walk for more than half (AR 100.) The ALJ found that Plaintiff’s severe impairments, consisting of 18 low back strain, bilateral carpal tunnel syndrome, obesity, and 19 chronic obstructive pulmonary disease, could reasonably be expected to 20 21 22 23 24 25 26 27 28 1 The Court is also somewhat confused with the ALJ’s statement that he was according Dr. Girgis’ opinion “significant weight, but not great weight.” (AR 20.) “Significant weight” and “great weight” seem to the Court to be very similar terms. If appropriate, the ALJ may want to expand on this language on remand, keeping in mind that, where an ALJ accords a doctor’s opinion significant weight, it may be error for him to not include the doctor’s limitations in the residual functional capacity finding. See, e.g., Van Sickle v. Astrue, 385 Fed. App’x 739, 741 (9th Cir. 2010) (concluding ALJ committed error by finding consultative medical opinions “highly probative” but failing to include limitations contained in those opinions in residual functional capacity determination or to explain why he rejected them) (citing Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)). 5 1 cause her alleged symptoms but that her testimony was not entirely 2 credible. 3 doing so because he based his finding solely on the fact that there 4 was no objective medical evidence to support the testimony. 5 Stip. at 16.) 6 ALJ erred in rejecting her testimony. 7 (AR 15, 18-19.) Plaintiff contends that the ALJ erred in (Joint For the following reasons, the Court concludes that the ALJs are tasked with judging a claimant’s credibility. 8 53 F.3d at 1039. 9 techniques. Andrews, In doing so, they can rely on ordinary credibility Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 10 Where there is no evidence of malingering, however, they can only 11 reject a claimant’s testimony for specific, clear, and convincing 12 reasons that are supported by substantial evidence in the record. 13 Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014). 14 The ALJ determined that Plaintiff was not credible because she 15 had elected to pursue only conservative treatment and because the 16 medical evidence did not support her claims of disabling pain and 17 limitation. 18 questioning a claimant’s testimony, see Parra v. Astrue, 481 F.3d 742, 19 751 (9th Cir. 2007) (noting conservative treatment, including use of 20 only over-the-counter medication to control pain, supported 21 discounting claimant’s testimony regarding pain); and Rollins v. 22 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (noting ALJ can consider 23 objective medical evidence in determining credibility of claimant), 24 they are not supported by the record. 25 (AR 19-21.) Though these are legitimate reasons for Despite Plaintiff’s allegedly crippling pain, there is no 26 evidence that she had ever received any treatment other than pain 27 medication. 28 had surgery, injections, or physical therapy for her back. In December 2011, she told Dr. Girgis that she had never 6 (AR 527.) 1 In July 2012, she told her treating doctor that, despite the fact that 2 she had been suffering from back pain for 15 years, she had never seen 3 an orthopedist or had a CT scan or an MRI. 4 (AR 556.) In a vacuum, Plaintiff’s failure to pursue additional treatment 5 would support the ALJ’s finding that she was not credible. 6 ALJ overlooked, however, was that Plaintiff repeatedly told her 7 doctors that she could not pursue more intensive treatment because she 8 could not afford it and did not have medical insurance. 9 572, 585.) What the (AR 564, 566, The ALJ erred in rejecting her testimony on the ground 10 that she failed to obtain additional treatment where she was unable to 11 obtain it because she could not afford it. 12 F.3d 625, 638 (9th Cir. 2007) (holding claimant’s inability to seek 13 treatment more often because he could not afford it could not be basis 14 for adverse credibility finding); see also Social Security Ruling 15 (“SSR”) 96-7P, 1996 WL 374186, at *7 (July 2, 1996) (“[T]he 16 adjudicator must not draw any inferences about an individual's 17 symptoms . . . from a failure to seek or pursue regular medical 18 treatment without first considering any explanations that the 19 individual may provide, or other information in the case record[.]”).2 20 The ALJ’s only other reason for questioning Plaintiff’s testimony See Orn v. Astrue, 495 21 was that it was not supported by the objective medical evidence. 22 Though this can be a reason for questioning a claimant’s testimony, it 23 cannot be the only reason. 24 fact that the Court has rejected the ALJ’s other reason for 25 discounting Plaintiff’s testimony, the lack of medical evidence alone Rollins, 261 F.3d at 856. In light of the 26 27 28 2 The ALJ recognized in his June 2013 decision awarding benefits that Plaintiff had not pursued other treatment and tests because she could not afford it and did not have insurance. (AR 179.) It is not clear why he left this out of his most recent decision. 7 1 cannot support that finding. 2 reversed and the issue is remanded to the Agency for further 3 consideration. 4 5 As such, the credibility finding is IV. CONCLUSION For these reasons, the ALJ’s decision is reversed and the case is 6 remanded to the Agency for further consideration consistent with this 7 Memorandum Opinion and Order.3 8 IT IS SO ORDERED. 9 DATED: February 23, 2016. 10 _______________________________ PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 S:\PJW\Cases-Social Security\WEST, C 2163\Memo Opinion and Order.wpd 24 3 25 26 27 28 Plaintiff has requested that the Court remand the case for an award of benefits. The Court recognizes that it has the authority to do so but finds that such relief is not warranted here because it is not clear from the record whether Plaintiff is entitled to an award of benefits. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015), as amended (Feb. 5, 2016) (“Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits.”). 8
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