Brandy Renay Brammer v. Carolyn W. Colvin, No. 5:2015cv00756 - Document 17 (C.D. Cal. 2015)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. (See document for further details). (mr)
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Brandy Renay Brammer v. Carolyn W. Colvin Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRANDY RENAY BRAMMER, Plaintiff, 12 13 Case No. EDCV 15-0756 SS v. MEMORANDUM DECISION AND ORDER 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 14 17 18 19 I. 20 INTRODUCTION 21 22 Brandy Renay Brammer (“Plaintiff”) seeks review of the final 23 decision of 24 Administration (the “Commissioner” or the “Agency”) denying her 25 application 26 Supplement 27 pursuant 28 undersigned to the for Disability Security 28 Commissioner Income U.S.C. United § of the Insurance (“SSI”). 636(c), States to Social Benefits The the Security (“DIB”) parties consented, jurisdiction Magistrate and of the Judge. Dockets.Justia.com 1 For the reasons stated below, the decision of the Commissioner is 2 REVERSED 3 consistent with this decision. and REMANDED for further administrative proceedings 4 5 II. 6 PROCEDURAL HISTORY 7 8 9 On May 21, 2009, Plaintiff filed for DIB and SSI, claiming that she became disabled on September 25, 1999. (“AR”) (Administrative 10 Record 11 disability 12 deg[enerative] 13 nerves.” 14 on August 22, 2009 (AR 131-37) and upon reconsideration on March 15 18, 2010. (AR 140-44). 264-67, 277-83). “[l]ower on back disc,[]nerve (AR 313). Plaintiff based pain, failed alleged bu[l]ging injury, her disc, surgery, pinched The Agency denied Plaintiff’s applications 16 17 Plaintiff requested a hearing, which was held before 18 Administrative Law Judge (“ALJ”) Jay E. Levine on May 12, 2011. 19 (AR 20 Plaintiff was not disabled. 81-107). On June 24, 2011, ALJ Levine determined that (AR 113-22). 21 Plaintiff 22 filed a request for review of ALJ Levine’s 23 decision, which the Appeals Council (the “Council”) granted. 24 127). 25 decision and remanded the matter for further proceedings. 26 127-29). 27 consider whether Plaintiff was capable of performing any of her 28 past On November 16, 2012, the Council vacated the (AR ALJ’s (AR Upon remand, the Council directed the ALJ to further relevant work, further evaluate 2 Plaintiff’s mental 1 impairment, and give further consideration to Plaintiff’s maximum 2 RFC during the entire period at issue. 3 necessary 4 vocational expert. the ALJ was required to (AR 128). obtain Further, if evidence from a (AR 129). 5 6 On April 25, 2013, ALJ Tamara Turner-Jones (the “ALJ”) 7 conducted a hearing following the Council’s remand order. 8 41-80). 9 decision. On June (AR 14, 13-28). 2013, the Plaintiff ALJ issued sought an review (AR unfavorable before the 10 Council (AR 7-9), which the Council denied on February 20, 2015. 11 (AR 1-4). 12 of the Commissioner. 13 17, 2015. The ALJ’s determination thus became the final decision Plaintiff filed the instant action on April 14 15 III. 16 FACTUAL BACKGROUND 17 18 Plaintiff was born on February 20, 1980. (AR 26). She was 19 nineteen years old as of the alleged disability onset date and 20 twenty-three years old at the time of her hearing before the ALJ. 21 (AR 43). 22 injury. 23 2003. In September 1999, Plaintiff suffered a work-related (AR 434). Plaintiff's last-insured date was June 30, (AR 15). 24 25 26 27 28 3 1 A. Relevant Medical Evidence 2 3 Dr. Timothy P. Gray, an orthopaedic surgeon, provided 4 Plaintiff treatment of one to two sessions per month between 5 January 2000 to April 2002 in connection with her 1999 workers’ 6 compensation claim. 7 Plaintiff 8 degeneration and bilateral leg pain. 9 an for October (AR 370-441). her 1999 complaints MRI of Dr. Gray primarily treated of low back (Id.). Plaintiff’s pain with disk Dr. Gray noted that lumbar spine revealed a 10 “central disk herniation” and “some minimal degenerative changes” 11 at L4-5. 12 alia, 13 brace, 14 Tylenol #3, Tylenol #4, Prozac, Ultracet, and Paxil. 15 377-80, 383-84, 387-88, 391, 393-94, 397-98, 401, 403, 406-07, 16 408, 411, 415, 419, 423, 425, 426, 429, 431, 432, 438-39). 17 September 29, 2000, Plaintiff underwent lumbar diskograms which 18 revealed positive pain and an annular tear at L4-5 and possibly 19 at L5-S1. 20 an IDET procedure at L4-5 and L5-S1. 21 2001, Plaintiff began to complain of low back pain again, and 22 continued to do so through April 2002, Dr. Gray’s last treatment 23 note of record. 24 Gray primarily placed Plaintiff on modified work duty, limited to 25 sedentary or light work in two to four hour shifts. 26 378-79, 393, 398, 401-02, 426-27, 429, 431-32). (AR 437). physical and Dr. Gray treated Plaintiff’s pain with inter therapy, medications, (AR 409-10). injections, including pain management, Darvocet, Vistaril, a back Vioxx, (AR 371-73, On On December 5, 2000, Plaintiff underwent (AR 371-400). (AR 403, 405). In June While he treated Plaintiff, Dr. 27 28 4 (AR 371-73, 1 Dr. Thomas Haider, Plaintiff’s more recent treating 2 physician, 3 workers’ compensation claim, saw Plaintiff at least sixty times 4 between October 2004 to April 2013 for complaints of low back and 5 leg pain. 6 Haider 7 foraminotomy at L4-5 on the right side. 8 surgery, Plaintiff reported worsening of symptoms. 9 591, 597, 603-04, 606, 613-14, 619, 621). who also treated Plaintiff (AR 567-673, 799-864). performed on Plaintiff a in connection with her On November 2, 2006, Dr. laminotomy, of discectomy, (AR 494-95). and After the (AR 581, 587, Dr. Haider reported Plaintiff’s 10 that 11 showed “straightening as well as reversal of cervical lordosis 12 [and] spondylosis of the C2-C4 levels.” 13 MRI of Plaintiff’s lumbar spine showed “continuation of prominent 14 posterior disc bulge measuring 4 mm in size at the level of L4- 15 5,” “bilateral foraminal stenosis,” “disc dessication” at L4-5, 16 “mild 17 “diffuse disc desiccation” at L3-4, L4-5, and L5-S1. a January 2008 bilateral radiograph facet arthropathy” cervical (AR 599). at L3-4 spine A July 2008 and L5-S1, and (AR 582). 18 19 Between 2004 and 2008, Dr. Haider treated Plaintiff with 20 inter 21 narcotic 22 Duragesics, Lorcet, and Ultram. 23 605, 607, 613, 615, 622, 625-26, 627, 636, 638, 645, 649, 651, 24 653, 655, 657, 661, 663, 665, 669-70). 25 difficulty controlling her medications, Plaintiff entered an in- 26 patient detox program. 27 Dr. Haider treated Plaintiff with trigger point injections, heat 28 wraps, and non-narcotic pain medications. alia, trigger pain point medications, injections including 585, Fentanyl 602 647) patches, and Norco, (AR 582, 589, 592, 595, 599, (AR 576, 579). 5 (AR In October 2008, due to Between 2009 and 2013, (AR 569, 802, 810, 1 812-13, 820, 823-25, 829-30, 832, 837-38, 839-40, 843, 845-46, 2 853). 3 “significant right sided forminal stenosis due to 4mm broad based 4 disc bulging” and “moderate to severe disc dessication at L4-5.” 5 (AR 812). 6 Dr. Haider noted that there was “progression of the severe disc 7 space collapse at L4-5,” “central and forminal stenosis secondary 8 to a 3.8 mm circumferential disc bulge as well as bilateral facet 9 arthrosis,” A September 2009 MRI of Plaintiff’s lumbar spine revealed Based on a December 2011 MRI of Plaintiff’s lumbar, and “degenerative disc disease with a 2.5 mm 10 circumferential disc bulge” at L5-S1. 11 MRI of Plaintiff’s lumbar spine revealed “[r]ight laminectomy at 12 L4,” “[g]rade 1 retrolisthesis of L4,” a “3.8 mm circumferential 13 disc bulge” at L4-5, “[b]ilateral facet arthrosis and moderate 14 bilateral neural foraminal narrowing” at L4-5 and L5-S1, and a 15 “2.8 16 eletrodiagnostic report also revealed mild to moderate right L5 17 and S1 sensory radiculopathy. 18 Dr. Haider’s progress notes repeatedly indicated that Plaintiff 19 had difficulty walking, difficulty changing positions and getting 20 onto the examining table, tenderness over the low back, muscle 21 spasm, restricted motion with pain of the lumbar, guarding with 22 motion, 23 bilaterally. 24 598, 602, 604, 606, 610, 612, 614, 619, 629, 631, 635, 637, 640, 25 643, 647, 653, 655, 661, 665, 800, 802, 810, 812, 816, 818, 823, 26 828, 830, 832). mm disc bulge” antalgic at gait, L5-S1. (AR 821). (AR (AR 856). and/or 855). An April 2013, An April 2013 Between 2005 and 2013, positive straight leg test (AR 568, 572, 576, 578, 582, 585, 588, 592, 595, 27 28 6 On April 23, 2013, Dr. Haider completed a “Physical Residual 1 2 Capacity Question.” (AR 860-64). 3 Haider diagnosed Plaintiff with “status post laminectomy lumbar 4 surgery in 2006.” 5 findings 6 findings. 7 of physical therapy, medications, injections, MRIs, and surgery. 8 (AR 861). 9 pounds. (AR 860). included positive In the questionnaire, Dr. He noted his clinical and objective MRI, nerve conduction, and x-ray Plaintiff’s treatment included short courses (Id.). He opined that Plaintiff could occasionally carry ten (AR 862). She has significant limitations in doing 10 repetitive reaching, handling or fingering. 11 has marked limitation in bending and twisting at the waist. (AR 12 862-63). and can 13 continuously sit and stand for fifteen minutes every hour. (AR 14 863). 15 minutes in a less than two-hour period. 16 for forty minutes and stand for twenty-five minutes in a two-hour 17 period. 18 ten minutes each time. 19 positions 20 Plaintiff would be absent from work more than three times a month 21 due to her impairments or treatment. She can walk one block (Id.). without rest Plaintiff Plaintiff can sit for twenty minutes and stand for fifteen (Id.). and (Id.). She can also sit Plaintiff must walk every fifteen minutes for take (Id.). She would also need to shift unscheduled 22 23 24 25 26 27 28 7 breaks. (AR 864). (Id.). Finally, IV. 1 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 2 3 4 To qualify for disability benefits, a claimant must 5 demonstrate 6 impairment that prevents her from engaging in substantial gainful 7 activity and that is expected to result in death or to last for a 8 continuous period of at least twelve months. 9 157 F.3d a medically 715, 721 determinable (9th Cir. 1998) physical or mental Reddick v. Chater, (citing 42 U.S.C. § 10 423(d)(1)(A)). 11 of performing the work she previously performed and incapable of 12 performing any other substantial gainful employment that exists 13 in the national economy. 14 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). The impairment must render the claimant incapable Tackett v. Apfel, 180 F.3d 1094, 1098 15 16 To decide if a claimant is entitled to benefits, an ALJ 17 conducts a five-step inquiry. 18 20 C.F.R. §§ 404.1520, 416.920. The steps are: 19 20 (1) Is the claimant presently engaged in substantial 21 gainful activity? 22 not disabled. 23 (2) If so, the claimant is found If not, proceed to step two. Is the claimant’s impairment severe? 24 claimant is found not disabled. 25 If not, the to step three. 26 (3) If so, proceed Does the claimant’s impairment meet or equal one 27 of the specific impairments 28 C.F.R. Part 404, Subpart P, Appendix 1? 8 described in 20 If so, 1 the claimant is found disabled. 2 to step four. 3 (4) If not, proceed Is the claimant capable of performing her past 4 work? 5 If not, proceed to step five. 6 (5) If so, the claimant is found not disabled. Is the claimant able to do any other work? 7 not, the claimant is found disabled. 8 If claimant is found not disabled. If so, the 9 10 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 11 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 12 C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 13 14 The claimant has the burden of proof at steps one through 15 four, and the Commissioner has the burden of proof at step five. 16 Bustamante, 262 F.3d at 953-54. 17 affirmative duty to assist the claimant in developing the record 18 at every step of the inquiry. 19 claimant meets her burden of establishing an inability to perform 20 past 21 perform some other work that exists in “significant numbers” in 22 the national economy, taking into account the claimant’s residual 23 functional capacity (“RFC”), age, education, and work experience. 24 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 25 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 26 so by the testimony of a VE or by reference to the Medical- 27 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 28 Appendix 2 (commonly known as “the Grids”). work, the Commissioner Additionally, the ALJ has an Id. at 954. must 9 show If, at step four, the that the claimant can The Commissioner may do Osenbrock v. Apfel, 1 240 F.3d 1157, 1162 (9th Cir. 2001). 2 exertional (strength-related) and non-exertional limitations, the 3 Grids are inapplicable and the ALJ must take VE testimony. 4 v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. 5 Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). When a claimant has both Moore 6 V. 7 THE ALJ’S DECISION 8 9 10 11 12 13 14 15 16 17 The ALJ process. employed the five-step sequential evaluation At step one, the ALJ found that Plaintiff had not engaged in substantial gainful employment since her alleged onset date of September 25, 1999. (AR 15). At step two, the ALJ found that Plaintiff had the severe impairments of degenerative disc disease of diskectomy, obesity. the lumbar sprain/strain spine, of the status post cervical laminotomy spine, asthma, and and (AR 16). 18 19 20 21 22 23 24 At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (AR 18). The ALJ then found that Plaintiff had the following RFC: 25 26 27 28 [Plaintiff] has the residual functional capacity to perform a range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) and SSR 83-10 specifically 10 1 as follows: [Plaintiff] can lift and/or carry up to 10 2 pounds; she can stand and/or walk for two hours out of 3 an eight-hour workday with customary breaks; she can 4 sit for six hours out of an eight-hour workday with 5 customary breaks; she can occasionally kneel, stoop, 6 crawl, or crouch; she can occasionally climb ramps or 7 stairs, but she can never climb ladders, ropes and 8 scaffolds; she can [] frequently use the hands for 9 fine and gross manipulations; she can occasionally 10 reach overhead bilaterally (above shoulder level); she 11 can 12 side; she must avoid exposure to unprotected heights 13 and dangerous machinery; she must avoid concentrated 14 exposure to extremely cold temperatures and pulmonary 15 irritants 16 [Plaintiff] 17 persistence and pace in at least two-hour blocks of 18 time; 19 coworkers, supervisors, and the general public; due to 20 the 21 [Plaintiff] is limited to unskilled tasks and she will 22 be off-task for five percent of the workday. frequently and side rotate such as can she effects the dusts, sustain can of neck fumes, from gases, concentration, interact medication 23 24 fully (Id.). 25 26 27 28 11 side and odors; attention, appropriately and to chronic with pain, 1 In making this finding, the considered ALJ Plaintiff’s 2 subjective allegations, but did not find them fully credible. 3 (AR 20-25). The ALJ also noted that: 4 5 No single assessment has been completely adopted as 6 the [RFC] determined here. 7 the evidence in a light most favorable to [Plaintiff], 8 the 9 restrictions on a function-by-function basis that are 10 best supported by the objective evidence as a whole. 11 The 12 considered 13 chronic 14 extremities. 15 accommodates for [Plaintiff’s] actual limitations. undersigned undersigned has has In viewing the totality of assessed also [Plaintiff’s] pain and more than subjective problems with [RFC] assessed The those her specific generously complaints neck herein of and upper more than 16 17 (AR 26). 18 19 At step four, the ALJ found that Plaintiff has no past 20 relevant 21 considering Plaintiff's age, education, work experience and RFC, 22 she could perform jobs that exist in significant numbers in the 23 national economy. 24 concluded that Plaintiff could perform the requirements of lens 25 gauger, table worker, addresser, surveillance system monitor, and 26 bench assembler. 27 Plaintiff was not disabled through the date of the decision. 28 28). work. (Id.). (Id.). At step five, the ALJ found that, Based on the VE’s testimony, the ALJ (AR 27). Accordingly, the ALJ found that 12 (AR 1 VI. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner’s decision to deny benefits. The court may set the 6 decision aside when the ALJ’s findings are based on legal error 7 or are not supported by substantial evidence in the record as a 8 whole. 9 (citing Tackett, 180 F.3d at 1097). Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) “Substantial evidence is 10 more than a scintilla, but less than a preponderance.” 11 157 F.3d at 720 (citing Jamerson v. Chater, 112 F.3d 1064, 1066 12 (9th Cir. 1997)). 13 person might accept as adequate to support a conclusion.” Id. 14 (citing Jamerson, 112 F.3d at 1066; Smolen v. Chater, 80 F.3d 15 1273, 1279 (9th Cir. 1997)). Reddick, It is “relevant evidence which a reasonable 16 To 17 determine the 20 from the [Commissioner’s] conclusion.’” 21 1035 22 1993)). 23 or reversing that conclusion, the court may not substitute its 24 judgment for the Commissioner’s. 25 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). 2 F.3d record as a a weighing both evidence that supports and evidence that detracts Sullivan, the supports 19 v. “‘consider evidence finding, Penny must substantial 18 (quoting court whether whole, Aukland, 257 F.3d at 953, 956 (9th Cir. If the evidence can reasonably support either affirming 26 27 28 13 Reddick, 157 F.3d at 720-21 1 VII. 2 DISCUSSION 3 4 Plaintiff contends that the Commissioner's decision should 5 be overturned for two reasons. 6 did not properly consider the opinion of treating physicians, Dr. 7 Gray 8 (Plaintiff’s Memorandum in Support of Complaint (the “MSC”), Dkt. 9 No. and 14, Dr. at Haider, 4-9; First, Plaintiff contends the ALJ in Plaintiff’s determining Reply Plaintiff’s Memorandum in RFC. Support of 10 Complaint (“Reply”), Dkt. No. 16, at 3-5). 11 claims that the ALJ did not properly consider her subjective pain 12 testimony. 13 concludes 14 treating physicians’ opinion, it is unnecessary to address the 15 remaining issue raised by Plaintiff. (MSC at 9-13; Reply at 5-7). that the ALJ did not properly Second, Plaintiff Because the Court consider Plaintiff's 16 17 The ALJ Failed To Properly Consider The Opinions Of 18 Plaintiff’s Treating Physicians In Determining Plaintiff’s 19 Residual Functional Capacity 20 21 Social Security regulations require the ALJ to consider all 22 relevant medical evidence when determining whether a claimant is 23 disabled. 24 treating physicians are entitled to special weight because the 25 treating physician is hired to cure and has a better opportunity 26 to know and observe the claimant as an individual. 27 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Thomas v. Barnhart, 28 278 F.3d 947, 956–57 (9th Cir. 2002); Magallanes v. Bowen, 881 20 C.F.R. §§ 404.1520b, 416.927(c). 14 The opinions of Connett v. 1 F.2d 747, 751 (9th Cir. 1989). 2 opinion is not contradicted by another doctor, it may be rejected 3 only for “clear and convincing” reasons. 4 F.3d 821, 830 (9th Cir. 1995) (as amended). 5 physician's opinion is contradicted by another doctor, the ALJ 6 may 7 legitimate 8 record. 9 (9th Cir. 2007); Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 10 not reject this reasons, Where the treating doctor's opinion supported Lester v. Chater, 81 Even if the treating without by providing substantial specific, evidence in the Id. at 830–31; see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2008). 11 1. 12 Dr. Timothy P. Gray 13 14 15 16 17 18 Plaintiff argues that the “ALJ was correct in stating that Dr. Gray’s records indicate that [Plaintiff] was released to perform primarily sedentary work,” however, the ALJ failed to properly consider Dr. Gray’s conclusion that Plaintiff would be limited to working at that level only for two to four hours per 19 day. (MSC at 4-9; Reply at 3-5). The Court agrees. 20 21 In determining Plaintiff’s RFC, the ALJ noted that she gave 22 “significant weight, but not controlling weight to the opinions 23 expressed by 24 although Dr. 25 records that [Plaintiff] could perform at least sedentary work . 26 . . [s]ince his assessments of [Plaintiff’s] capacity was done 27 within the workers’ compensation setting and do not reflect the 28 specific Dr. Gray Gray.” “felt (AR 25). throughout function-by-function The the residual 15 ALJ explained workers’ that compensation functional capacity 1 required 2 weight.” 3 findings that Plaintiff was limited to shifts of two to four 4 hours, and failed to provide specific and legitimate reasons for 5 doing so. 6 evidence when determining whether a claimant is disabled. 7 C.F.R. §§ 404.1520b, 416.927(c). 8 assess whether a claimant has the ability to work on a sustained 9 basis. 10 Gray’s 11 assessment was not a specific and legitimate reason to reject his 12 opinion. by the Regulations, (Id.). it is not accorded controlling Thus, the ALJ implicitly rejected Dr. Gray’s The ALJ is required to consider all relevant medical The ALJ is also required to Reddick, 157 F.3d at 724. opinion did not 20 include Thus, merely because Dr. a function-by-function RFC 13 14 The ALJ also has a duty to translate Dr. Gray’s workers' 15 compensation findings into Social Security terms. Macri v. 16 Chater, 93 F.3d 540, 544 (9th Cir. 1996); Desrosiers v. Secretary 17 of Health & Human Services, 846 F.2d 573, 576 (9th Cir. 1988); 18 Booth, 181 F. Supp. 2d at 1104. Although workers' compensation 19 disability ratings are not controlling in Social Security cases, 20 an ALJ must nevertheless evaluate medical opinions stated in 21 workers' compensation terminology just as he would evaluate any 22 other medical opinion. Id. The ALJ must “translate” terms of art contained terminology 23 in such medical in order to accurately 24 assess the implications of those opinions for the Social Security 25 disability 26 27 28 “While the determination. ALJ's ‘translation,’ it See decision should at Desrosiers, need not least 16 846 contain indicate F.2d an that at 576. explicit the ALJ 1 recognized the differences between the relevant state workers' 2 compensation 3 Social Security disability terminology, on the other hand, and 4 took those differences into account in evaluating the medical 5 evidence.'” 6 Gray 7 evaluation of Plaintiff, they were not translated for determining 8 Plaintiff's eligibility for social security benefits. terminology, on the one hand, Booth, 181 F. Supp. 2d at 1105. made findings relevant to his and the relevant Here, although Dr. workers' compensation 9 10 Because the ALJ failed to provide specific and legitimate Dr. Gray’s opinion, 11 reasons for 12 remanded to 13 translate 14 appropriate social security terminology, and then either provide 15 specific and legitimate reasons to reject Dr. Gray’s opinions or 16 incorporate the limitations provided by Dr. Gray into the RFC 17 determination. rejecting remedy Dr. this Gray’s defect. Upon workers' the remand, compensation case the must ALJ findings be must into 18 19 2. Dr. Thomas Haider 20 21 Plaintiff contends that the ALJ failed to articulate legally 22 sufficient reasons for rejecting Dr. Haider’s opinions. 23 7-9; Reply at 5). (MSC at The Court agrees. 24 25 In determining Plaintiff’s RFC, the ALJ considered Dr. 26 Haider’s April 23, 2013 “Physical Residual Functional Capacity 27 Questionnaire.” 28 opined that Plaintiff could lift and carry up to ten pounds. (AR 860-64). As noted by the ALJ, Dr. Haider 17 (AR 1 25). 2 manipulative 3 limitation her ability to twist at the waist. 4 walk for one block without rest and be absent from work more than 5 three times per month. 6 Haider’s opinion regarding Plaintiff’s ability to sit and stand 7 was “unclear and confusing.” Plaintiff was maneuvers limited with in her (Id.). her hands ability and to she perform had (Id.). marked She could Finally, the ALJ noted that Dr. (Id.). 8 9 Although the ALJ gave “great weight” to Dr. Haider’s April 10 2013 assessment that Plaintiff could “lift and carry up to 10 11 pounds,” she gave “minimal weight to the other limitations, as 12 they are not well supported by the objective record as a whole.” 13 (AR 14 opinion that Plaintiff would be “absent more than three times per 15 month [because it] is speculative and without substantial support 16 from the record.” 17 appears to cite to inter alia that: (1) Plaintiff retained the 18 ability to ambulate effectively and she did not need an assistive 19 device 20 “revealed a moderate pathology in the lumbar spine at most” and 21 “[e]letrodiagnostic 22 moderate sensory radiculopathy”; (3) there is “nothing in the 23 record, except for [Plaintiff’s] subjective complaints, showing 24 any significant limitations in the cervical spine or the upper 25 extremities”; and (4) Plaintiff responded well to “conservative 26 nonnarcotic 27 emergency or urgent care for acute symptom exacerbations.” (AR 28 25). and 25). for The More specifically, (Id.). ambulation pain Court ALJ rejected Dr. Haider’s In support of her finding, the ALJ or stability; testing only medications finds the these and recently she reasons 18 (2) has are diagnostic confirmed not not had imaging mild to specific to seek 1 legitimate reasons supported by substantial evidence to reject 2 Dr. Haider’s opinion. 3 4 As an initial matter, because the ALJ specifically found Dr. 5 Haider’s opinion regarding Plaintiff’s ability to sit and stand 6 “unclear and confusing,” the ALJ had a duty to re-contact Dr. 7 Haider 8 opinion. 9 2001) (ALJ has a duty to develop the record further when there is 10 for clarification rather than simply rejecting his See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. ambiguous evidence). 11 Moreover, the ALJ erred in rejecting Dr. Haider’s opinion as 12 13 “speculative.” As discussed above, Dr. Haider treated Plaintiff 14 over the course of nearly nine years on a frequent and continual 15 basis, and his opinion is supported by clinical findings and 16 objective 17 these 18 opinion is “speculative” is not a specific and legitimate reason 19 to reject his opinion. diagnostic testing. circumstances, the (AR ALJ's 567-673, assertion 799-864). that Dr. Under Haider’s 20 21 Next, although the ALJ cites to moderate pathology in 22 Plaintiff’s lumbar spine, as well as mild to moderate sensory 23 radiculopathy to reject Dr. Haider’s opinion, the ALJ fails to 24 explain how those findings are inconsistent with Dr. Haider’s 25 opinion. 26 27 28 19 1 The ALJ’s next reasoning that the record “largely” shows 2 that Plaintiff was able to ambulate effectively and there is 3 nothing to indicate she was reliant on an assistive device for 4 ambulation or stability lacks substantial support in the record. 5 Numerous progress notes from Dr. Haider reflect that Plaintiff 6 had 7 getting 8 “antalgic gate” and/or positive straight leg test. 9 576, 578, 582, 585, 588, 592, 595, 598, 602, 604, 606, 610, 612, 10 614, 619, 629, 631, 635, 637, 640, 643, 647, 653, 655, 661, 665, 11 800, 802, 810, 812, 816, 818, 823, 828, 830, 832). “difficulty onto walking,” the “difficulty examining table,” changing “guarding position with and motion,” (AR 568, 572, 12 The ALJ’s statement that there is “nothing in the record, 13 14 except for [Plaintiff’s] 15 significant 16 extremities” is contradicted by the record. 17 reflects, Dr. Haider found on several occasions “tenderness in 18 the cervical spine, left pericervical w/spasm, right pericervical 19 w/spasm, and trapezius” and “evidence of muscle spasm at the 20 cervical spine.” (AR 572, 575, 581, 584, 587, 591, 594, 597). 21 Dr. Haider also noted that “[r]adiographs of the cervical spine 22 show 23 lordosis as well as spondylosis of the C2-C4 level” and “severe 24 muscle spasm.” 25 opinions regarding Plaintiff’s cervical spine or upper extremity 26 limitations solely on Plaintiff’s subjective complaints. limitations cervical subjective in straightening (AR 599). the as complaints, cervical well as spine showing or the any upper Rather, the evidence reversal of cervical Thus, Dr. Haider did not base his 27 28 20 1 Finally, the finding that Plaintiff responded well to 2 conservative 3 consistent with the record. 4 Plaintiff 5 control the use of narcotic medications. 6 was prescribed only non-narcotic medications after 2008. 7 576, 579, 804). 8 non-narcotic medications were not effective in alleviating her 9 pain because Plaintiff continually complained of increasing or 10 severe pain, which Dr. Haider continued to treat through 2013. 11 (AR 568, 571, 573, 800, 802, 810, 812, 823, 825, 828, 832, 837- 12 38, 842-43, 845, 852-53). 13 given several trigger point or nerve block injections to help 14 alleviate her pain. 15 846, 853). 16 well 17 supported by the medical evidence. 18 chronicle Plaintiff’s struggle with her back and leg pain, and at 19 no 20 conservative treatment. 21 considered a specific and legitimate reason. non-narcotic underwent to medications is not entirely As an initial matter, in 2008, detoxification due to her inability to As a result, Plaintiff (AR Dr. Haider’s progress notes reflect that the Plaintiff also requested, and was (AR 568, 810, 812, 823-24, 828, 830, 843, Accordingly, the finding that Plaintiff “responded conservative point pain show nonnarcotic sustained pain medications” is not Dr. Haider’s progress notes improvement or stabilization with Thus, the ALJ’s conclusion cannot be 22 23 On 24 clarification 25 opinion, and as necessary, revise Plaintiff's RFC. remand, the ALJ regarding should his contact opinion, 26 27 28 21 Dr. Haider, reconsider Dr. obtain Haider’s 1 VIII. 2 CONCLUSION 3 4 Accordingly, IT IS ORDERED that judgment be entered 5 REVERSING the decision of the Commissioner and REMANDING this 6 matter for further proceedings consistent with this decision. IT 7 IS FURTHER ORDERED that the Clerk of the Court serve copies of 8 this Order and the Judgment on counsel for both parties. 9 10 DATED: December 29, 2015 11 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 12 13 14 15 NOTICE 16 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 17 18 19 20 21 22 23 24 25 26 27 28 22
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