Tiffany N. Goff v. Carolyn W. Colvin, No. 5:2016cv00535 - Document 36 (C.D. Cal. 2017)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff filed this action on March 23, 2016. Pursuant to 28 U.S.C. § 636(c), theparties consented to proceed before the magistrate judge. (Dkt. Nos. 11, 12.) OnDecember 4, 2 017, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The court has taken the matter under submission without oral argument. Having reviewed the entire file, the court reverses the decision of the Commissione r and remands for reconsideration of Dr. Aval's opinions. IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and this matter is remanded for reconsideration of Dr. Aval's opinions and further inquiry at step five of the sequential analysis. (See Order for details.) (mp)
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Tiffany N. Goff v. Carolyn W. Colvin Doc. 36 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TIFFANY N. GOFF, 12 Plaintiff, 13 14 15 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) EDCV 16-535-AGR MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed this action on March 23, 2016. Pursuant to 28 U.S.C. § 636(c), the 19 parties consented to proceed before the magistrate judge. (Dkt. Nos. 11, 12.) On 20 December 4, 2017, the parties filed a Joint Stipulation (“JS”) that addressed the 21 disputed issues. The court has taken the matter under submission without oral 22 argument. 23 24 Having reviewed the entire file, the court reverses the decision of the Commissioner and remands for reconsideration of Dr. Aval’s opinions. 25 26 27 28 Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 In October 2012, Goff filed applications for disability insurance benefits and 4 supplemental security income, and alleged an onset date of December 30, 2008. 5 Administrative Record (“AR”) 13. The applications were denied initially and on 6 reconsideration. AR 13, 78-79, 102-03. Goff requested a hearing before an 7 Administrative Law Judge (“ALJ”). On August 27, 2014, the ALJ conducted a hearing at 8 which Goff and a vocational expert testified. AR 31-60. On September 22, 2014, the 9 ALJ issued a decision denying benefits. AR 10-26. On January 29, 2016, the Appeals 10 Council denied the request for review. AR 1-3. This action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court has authority to review the 14 Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not 15 supported by substantial evidence, or if it is based upon the application of improper 16 legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 17 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 “Substantial evidence” means “more than a mere scintilla but less than a 19 preponderance – it is such relevant evidence that a reasonable mind might accept as 20 adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether 21 substantial evidence exists to support the Commissioner’s decision, the court examines 22 the administrative record as a whole, considering adverse as well as supporting 23 evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than 24 one rational interpretation, the court must defer to the Commissioner’s decision. 25 Moncada, 60 F.3d at 523. 26 27 28 2 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, “only if his 5 physical or mental impairment or impairments are of such severity that he is not only 6 unable to do his previous work but cannot, considering his age, education, and work 7 experience, engage in any other kind of substantial gainful work which exists in the 8 national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 9 2d 333 (2003) (citation and quotation marks omitted). 10 B. The ALJ’s Findings 11 The ALJ found that Goff met the insured status requirements through June 30, 12 2011. AR 15. Following the five-step sequential analysis applicable to disability 13 determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),1 the ALJ 14 found that Goff had the severe impairments of instability of the lateral collateral 15 ligaments of the left ankle, status post Brostrom surgical repair; right ankle sprain with 16 small effusion, status post multiple right arthroscopic knee surgeries; history of right 17 knee post-surgical infection; osteoporosis of the right lower extremity; strain or sprain of 18 the left knee; left knee patellofemoral pain syndrome; bilateral hip grater trochanteric 19 bursitis; cervical and lumbosacral strain or sprain; and obesity. AR 15. The ALJ found that Goff had the residual functional capacity (“RFC”) to perform 20 21 light work except that she can stand and walk four hours in an eight-hour workday; 22 occasionally climb ramps and stairs, stoop and crouch; and occasionally use lower 23 extremities for pushing or pulling. She cannot climb ladders, ropes and scaffolds; 24 25 26 27 28 1 The five-step sequential analysis examines whether the claimant engaged in substantial gainful activity, whether the claimant’s impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his or her past relevant work, and whether the claimant is able to do any other work. Lounsburry, 468 F.3d at 1114. 3 1 balance, kneel or crawl; or use lower extremities for operation of foot controls. She 2 should avoid concentrated exposure to cold and vibration, and avoid working around 3 unprotected heavy machinery or unprotected heights. AR 18. She is unable to perform 4 any past relevant work, but there are jobs that exist in significant numbers in the 5 national economy that she can perform, such as electronics worker, small products 6 assembler and packing machine operator. AR 24-25. 7 C. 8 Goff argues that the ALJ erred in discounting the opinion of her treating 9 Treating Physician orthopedic surgeon, Dr. Aval, that she could sit for four hours, stand for one hour, walk 10 for one hour, and therefore work for a total of six hours in an eight-hour workday. 11 An opinion of a treating physician is given more weight than the opinion of 12 non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To reject an 13 uncontradicted opinion of a medically acceptable treating source, an ALJ must state 14 clear and convincing reasons that are supported by substantial evidence. Bayliss v. 15 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When the treating physician’s opinion is 16 contradicted, the ALJ must provide specific and legitimate reasons supported by 17 substantial evidence in the record to reject the opinion. The ALJ must provide a 18 thorough summary of the conflicting clinical evidence, state his or her interpretation and 19 make findings. Orn, 495 F.3d at 632. 20 Dr. Aval filled out a medical source statement dated July 23, 2014. AR 708-14. 21 Dr. Aval opined that Goff could occasionally lift/carry up to 20 pounds; sit for four hours, 22 stand for one hour and walk for one hour in an eight- hour workday; occasionally 23 push/pull; frequently reach and handle; continuously finger and feel; frequently operate 24 foot controls with the right foot but never with the left foot; and occasionally stoop and 25 climb stairs and ramps, but never climb ladders and scaffolds, balance, kneel, crouch or 26 crawl. AR 708-11. Goff could sort, handle and use paper files. AR 713. 27 28 4 1 In response to questions about the basis for the opinions, Dr. Aval’s report refers 2 to “attached” medical records and reports. AR 708-11, 713. However, the transmittal 3 sheet indicates that only seven pages were submitted. AR 707. Nevertheless, the 4 administrative record contains Dr. Aval’s reports and treating records for the period 5 November 24, 2009 through January 28, 2014. AR 245-64, 296, 397-468, 729-50. The 6 record contains treating records from an orthopedic surgeon, Dr. Heinen, for the period 7 December 19, 2012 through December 2013 (AR 565-604) and from another 8 orthopedic surgeon, Dr. Baum, for the period May-August 2014. AR 475-79, 752-57. 9 Dr. Baum’s records in May 2014 indicate that Goff was transitioning her care. AR 476. 10 The ALJ gave little weight to Dr. Aval’s opinion because it (1) was not supported 11 by Dr. Aval’s medical records, particularly those near the date of the medical source 12 statement, (2) was prepared before Goff underwent a modified Brostrom procedure of 13 the left ankle by Dr. Baum on August 7, 2014; and (3) was inconsistent with other 14 medical records. AR 23, 752. 15 The ALJ’s reasons for discounting Dr. Aval’s limitations on sitting are supported 16 by substantial evidence. The medical records of Dr. Aval and the other treating 17 orthopedic surgeons do not support the sitting limitations. Goff testified that, during the 18 day, her mother drops the children off at school and picks them up, and “I pretty much 19 sit there.” AR 42. Goff alleged that she cannot stand or walk for very long, cannot 20 squat and cannot bend without worrying about falling over. AR 42-43. She spends the 21 day sitting, standing up to stretch, and sitting again for seven to eight hours per day. 22 AR 43, 45. 23 However, because the ALJ’s rejection of Dr. Aval’s other limitations are not 24 supported by substantial evidence, the matter is remanded for reconsideration of Dr. 25 Aval’s opinions and further inquiry as appropriate at step five of the sequential 26 analysis.On July 27, 2008, Goff slipped and fell on a recently mopped floor while 27 28 5 1 working as a waitress. She fell on both knees on the concrete floor. She returned to 2 work after two weeks and was terminated on December 31, 2008. AR 255, 257. Dr. Watkin was the Agreed Medical Examiner during the workers compensation 3 4 proceedings and prepared reports dated May 10, 2011, September 4, 2012 (AR 266- 5 94) and January 13, 2014 (AR 716-27). Although Dr. Watkin’s report dated May 10, 2011 is not in the record, it is the 6 7 subject of Dr. Aval’s report dated October 3, 2011 and is described in Dr. Watkin’s 8 subsequent report on September 4, 2012. Goff complained to Dr. Watkin about 9 constant sharp pain in both knees. Dr. Watkin conducted a physical examination and 10 reviewed radiographs. AR 245. In his May 10, 2011 report, Dr. Watkin recommended 11 that Goff be provided with a gym membership and exercise every other day using an 12 elliptical machine and stationary bicycle as well as leg weights for extension. AR 246. 13 In Dr. Aval’s report dated October 4, 2011, Dr. Aval agreed with this recommendation. 14 AR 421. Dr. Aval’s opined that the “giving out” symptoms of the right knee was from 15 quadriceps weakness. The MRI of the right knee on July 27, 2011 indicated healthy 16 menisci and ACL, and no structural damage or new tears. There was some 17 inflammation in the area of the patellar tendon, which explained tenderness over the 18 anterior aspect of the right knee. AR 424. Goff was using a cane for support as 19 needed. AR 423. In his subsequent report on September 4, 2012, Dr. Watkin noted 20 that Goff had not complained of pain in her ankles during the examination on May 10, 21 2011. AR 291. Based on his review of the treating medical records, prior to April 1, 22 2012 the ankles were not a source of significant pain and were not the focus of 23 treatment.2 AR 293. 24 25 26 27 28 2 Because Goff filed her applications in October 2012, the court will not further detail the findings of Dr. Aval prior to May 2011 except to note that, in the August 2009 – October 2010 time frame, Goff had two surgeries on the right knee and had to use two crutches and a knee immobilizer to ambulate. E.g., AR 249, 251, 256, 260, 276, 45354, 457, 465, 467. 6 On September 4, 2012, Goff complained to Dr. Watkin of pain in both knees and 1 2 ankles, made worse with squatting, climbing, kneeling, and prolonged standing and 3 walking.3 AR 267. She reported no difficulty with communications by computer, phone 4 or writing; no difficulty with hand activities; and no difficulty reclining. She reported 5 some difficulty sitting, walking or standing for 30 minutes. AR 268. Dr. Watkin observed atrophy of the right thigh and calf secondary to disuse, and 6 7 noted that previous x-rays had indicated disuse osteoporosis. Dr. Watkin 8 recommended surgery on the right knee. Goff described minimal pain of the right ankle 9 and Dr. Watkin did not recommend treatment at that time. Dr. Watkin observed that an 10 MRI of the left ankle indicated anterior talofibular ligament rupture. However, he 11 recommended surgery on the right knee before proceeding with surgery on the left 12 ankle. AR 292. After review of Dr. Watkin’s report, Dr. Aval referred Goff to Dr. Heinen 13 for consultation on the recommended right knee surgery. AR 402. 14 Dr. Aval’s treatment notes are consistent with Dr. Watkins’ observations. On 15 October 4, 2011, Dr. Aval noted tenderness to palpation over the right quadriceps with a 16 5 cm “knot,” weakness, atrophy and antalgic gait. AR 419. On February 28, 2012, Dr. 17 Aval noted Goff had no muscle spasms in the lower back and straight leg raises were 18 negative. Her left ankle was normal. However, Goff had crepitus in both knees and 19 tenderness in the right ankle. Dr. Aval agreed with Dr. Baker’s recommendation for a 20 diligent long-term exercise program. AR 416-17. On April 1, 2012, Goff reported that 21 her right knee gave out while she was standing and taking off her shoes. Goff lost her 22 balance, rolled her left ankle, strained the right ankle and aggravated both knees. Since 23 the fall, Goff reported having trouble sitting, getting up from a seated position and 24 leaning forward. AR 413. Dr. Aval noted pain in the lumbar spine with flexion/ 25 26 27 28 3 Dr. Watkin noted that Goff had not previously complained of pain in her ankles during the examination on May 10, 2011. AR 266, 291. 7 1 extension, pain in both knees with range of motion and swelling of the right ankle. X- 2 rays showed no fractures or dislocations. AR 414. On May 8, 2012, Goff reported that 3 her low back pain was off and on. There was effusion and crepitus in both knees, and 4 swelling of the right ankle. AR 410. On September 21, 2012, Goff reported that her left 5 ankle popped and made a grinding/tearing sound when she got up from a chair. The 6 pain radiated up to her left shin and knee. She used an ankle brace for support. AR 7 404. On examination, Goff had no tenderness in the hips or right ankle. There was 8 tenderness in both knees with a positive grind test of the right knee. The left ankle had 9 moderate swelling and weakness of 4/5. AR 405. On October 30, 2012, Goff reported 10 that her left ankle gave out when she was standing, and she rolled her left ankle. AR 11 400. Both knees showed tenderness and effusion. The left ankle was tender with 12 swelling. AR 401. Dr. Aval noted Goff was awaiting ankle braces that were recently 13 authorized and should prevent falls such as the ones she had experienced. AR 402. 14 Beginning in December 2012, Goff reported occasional or intermittent low back 15 pain. AR 397, 729, 735. She had tenderness to palpation on her low back, hips, knees 16 and ankles. AR 730, 733, 740, 744. By June 2013, Goff wore a knee and ankle brace. 17 AR 735, 747. Goff was advised to continue a daily home exercise program for her 18 back, hips, knees and ankles. AR 737. On December 23, 2013, Goff reported to Dr. 19 Heinen that her right knee gave out one month ago. She rolled her right ankle, which 20 resulted in bruising and swelling. She reported pain with walking. Dr. Heinen noted 21 minimal swelling of the right knee, tenderness over both knees and right quadriceps 22 atrophy. Strength was 4-/5 in the right knee and 4/5 in the left knee. An MRI of the 23 right knee in September 2013 indicated a Baker’s cyst and progression of 24 chondromalacia and cartilage loss at the medial femoral condyle but no tears or 25 effusion. An MRI of the left knee indicated minimal effusion and minimal 26 chondromalacia involving the medial facet of the PF articulation cartilage. AR 566, 600- 27 03. Dr. Heinen ordered a medial unloader brace. AR 567. 28 8 1 Dr. Watkin’s report dated January 13, 2014 indicated that Goff complained of 2 constant sharp pain in both knees and ankles, made worse with walking, standing and 3 bending. AR 717. She reported no difficulty with sitting for 30 minutes or flying, and 4 some difficulty walking for 30 minutes. AR 718. Dr. Watkin noted subluxation of the 5 right patella with flexion of the knee; antalgic gait favoring the right knee; pain with heel 6 and toe walking; some thickening of the suprapatellar pouch with no evidence of fluid 7 and positive drawer sign of the left knee; unchanged examination of the right ankle; and 8 hypermobility of the lateral ligament and joint of the left ankle. Dr. Watkin noted that an 9 MRI of the right knee indicated a Bakers cyst and progression of chondromalacia, and 10 an MRI of the left knee indicated slight progression of chondromalacia. Dr. Watkin 11 recommended repair of the lateral ligament of her left ankle and found that the 12 recommendation of a cortisone injection in the right knee to be reasonable. AR 723-24. 13 On May 16, 2014, Dr. Baum noted normal gait and posture. Goff did not have 14 tenderness to palpation, swelling or crepitus of the ankles. Motor strength was 5/5. 15 The anterior drawer test was positive for the left ankle. AR 477. Dr. Baum noted that 16 Goff’s preexisting hyperlaxity of all joints makes the ankle more unstable. Dr. Baum 17 opined that surgical correction to stabilize the lateral collateral ligaments would stabilize 18 the ankle postoperatively. AR 478. On August 7, 2014, Dr. Baum performed the 19 surgical procedure. AR 752. On August 11, 2014, four days after the surgical 20 procedure, Goff had mild bruising and instability of the lateral collateral ligaments. A 21 short leg cast was applied. AR 757. 22 The ALJ gave partial weight to the examining physician’s opinion. AR 23. Dr. 23 Bernabe diagnosed internal derangement of the right knee, patellofemoral instability of 24 the right knee and left ankle sprain. AR 472-73. Dr. Bernabe did not have Goff’s 25 medical records which, as described above, contained reports of periodic falls due to 26 one or the other knee giving out. AR 469. Dr. Aval’s limitations on walking and 27 standing are consistent with the longitudinal medical records. 28 9 1 D. Credibility 2 “To determine whether a claimant’s testimony regarding subjective pain or 3 symptoms is credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. 4 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). At step one, “the ALJ must determine 5 whether the claimant has presented objective medical evidence of an underlying 6 impairment ‘which could reasonably be expected to produce the pain or other 7 symptoms alleged.’” Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) 8 (en banc)). The ALJ found that Goff’s medically determinable impairments could 9 reasonably be expected to cause the alleged symptoms. AR 19. 10 Second, when an ALJ concludes that a claimant is not malingering and has 11 satisfied the first step, “the ALJ may ‘reject the claimant’s testimony about the severity 12 of her symptoms only by offering specific, clear and convincing reasons for doing so.’” 13 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (citation omitted); Burrell v. 14 Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). “A finding that a claimant’s testimony is 15 not credible ‘must be sufficiently specific to allow a reviewing court to conclude the 16 adjudicator rejected the claimant’s testimony on permissible grounds and did not 17 arbitrarily discredit a claimant’s testimony regarding pain.’” Brown-Hunter, 806 F.3d at 18 493 (citation omitted). “‘General findings are insufficient; rather, the ALJ must identify 19 what testimony is not credible and what evidence undermines the claimant’s 20 complaints.’” Id. (citation omitted). 21 The ALJ discounted Goff’s statements as “not entirely credible” because the 22 severity of her subjective allegations were not supported by the objective medical 23 evidence. AR 19-22. “Although lack of medical evidence cannot form the sole basis for 24 discounting pain testimony, it is a factor that the ALJ can consider in his credibility 25 analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). The ALJ is correct that 26 the objective medical evidence does not support the severity of Goff’s subjective 27 allegations. However, the law does not permit the ALJ to rely solely on that basis. 28 10 1 E. Relief 2 The decision whether to remand for further proceedings is within the discretion of 3 the district court. Treichler v. Comm’r, 775 F.3d 1090, 1099 (9th Cir. 2014). When 4 there are outstanding issues that must be resolved before a determination can be 5 made, and it is not clear from the record that the ALJ would be required to find the 6 claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. 7 at 1101. However, where no useful purpose would be served by further proceedings, or 8 where the record has been fully developed, it is appropriate to exercise this discretion to 9 direct an immediate award of benefits. Id. 10 11 Remand is appropriate because there are outstanding issues to be resolved before a determination can be made. 12 IV. 13 ORDER 14 IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and 15 this matter is remanded for reconsideration of Dr. Aval’s opinions and further inquiry at 16 step five of the sequential analysis. 17 18 19 DATED: December 14, 2017 ALICIA G. ROSENBERG United States Magistrate Judge 20 21 22 23 24 25 26 27 28 11
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