Monique Barbara Vogel v. Nancy Berryhill, No. 5:2017cv01840 - Document 19 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Monique Barbara Vogel v. Nancy Berryhill Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 MONIQUE BARBARA VOGEL, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Deputy ) Commissioner for Operations, ) Performing duties and functions not ) reserved to the Commissioner of ) Social Security, ) ) Defendant. ) ____________________________________) NO. ED CV 17-1840-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 21 judgment are denied, and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a Complaint on September 11, 2017, seeking review 27 of the Commissioner’s denial of disability benefits. The parties 28 filed a consent to proceed before a United States Magistrate Judge on Dockets.Justia.com 1 October 6, 2017. 2 3 Plaintiff filed a motion for summary judgment on February 26, 4 2018. Defendant filed a motion for summary judgment on March 28, 5 2018. The Court has taken both motions under submission without oral 6 argument. See L.R. 7-15; “Order,” filed September 12, 2017. 7 8 BACKGROUND 9 10 Plaintiff, a former waitress, asserts disability since June 6, 11 2011, based primarily on alleged neck pain (Administrative Record 12 (“A.R.”) 11-30, 66, 146-50, 1009). 13 status expired on September 30, 2015 (A.R. 988). Plaintiff’s disability insurance 14 15 Following a remand by this Court, an Administrative Law Judge 16 (“ALJ”) conducted another hearing and examined the record (A.R. 986- 17 97; see A.R. 1-982, 998-1647). 18 “degenerative disc disease of the cervical spine with cervical 19 spondylosis; bursitis of the left shoulder; degenerative joint 20 disease; history of thyroid cancer; and hypothyroidism” (A.R. 988). 21 The ALJ also found, however, that through September 30, 2015, 22 Plaintiff retained the residual functional capacity to perform medium 23 work, including Plaintiff’s past relevant work as a waitress (A.R. 24 989, 996). The ALJ found Plaintiff has severe 25 26 In reaching this conclusion, the ALJ rejected the opinion of 27 Plaintiff’s treating orthopedist, Dr. Neil Halbridge (A.R. 995). 28 Halbridge, who treated Plaintiff beginning in 2007 and continuing into 2 Dr. 1 2015, consistently opined during 2012-15 that Plaintiff’s severe neck 2 problems limited Plaintiff to less than a sedentary exertional 3 capacity (A.R. 707, 901, 905, 909, 911, 914, 921, 925, 930, 935, 939, 4 942, 1522, 1528, 1534, 1540, 1546, 1552, 1558, 1564, 1570, 1576, 1582, 5 1588, 1594, 1600, 1606, 1612, 1618, 1624, 1632). 6 7 STANDARD OF REVIEW 8 9 Under 42 U.S.C. section 405(g), this Court reviews the 10 Administration’s decision to determine if: (1) the Administration’s 11 findings are supported by substantial evidence; and (2) the 12 Administration used correct legal standards. 13 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 14 499 F.3d 1071, 1074 (9th Cir. 2007). 15 relevant evidence as a reasonable mind might accept as adequate to 16 support a conclusion.” 17 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 18 454 F.3d 1063, 1067 (9th Cir. 2006). See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 19 20 If the evidence can support either outcome, the court may 21 not substitute its judgment for that of the ALJ. 22 Commissioner’s decision cannot be affirmed simply by 23 isolating a specific quantum of supporting evidence. 24 Rather, a court must consider the record as a whole, 25 weighing both evidence that supports and evidence that 26 detracts from the [administrative] conclusion. 27 /// 28 /// 3 But the 1 DISCUSSION 2 3 The opinion of a treating physician commands particular respect. 4 “As a general rule, more weight should be given to the opinion of the 5 treating source than to the opinion of doctors who do not treat the 6 claimant. . . .” 7 (citations omitted). 8 given substantial weight.” 9 Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) A treating physician’s conclusions “must be Embrey v. Bowen, 849 F.2d 418, 422 (9th 10 (“the ALJ must give sufficient weight to the subjective aspects of a 11 doctor’s opinion. . . . 12 that of a treating physician”) (citation omitted); see also Orn v. 13 Astrue, 495 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference 14 owed to treating physicians’ opinions). 15 physician’s opinion is contradicted, as here,1 “if the ALJ wishes to 16 disregard the opinion of the treating physician he . . . must make 17 findings setting forth specific, legitimate reasons for doing so that 18 are based on substantial evidence in the record.” 19 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets 20 omitted); see Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ may 21 disregard the treating physician’s opinion, but only by setting forth 22 specific, legitimate reasons for doing so, and this decision must 23 itself be based on substantial evidence”) (citation and quotations 24 omitted). 25 the Court “cannot affirm the decision of an agency on a ground that This is especially true when the opinion is Even where the treating Winans v. Bowen, These reasons must be stated in the ALJ’s decision itself; 26 27 28 1 Rejection of an uncontradicted opinion of a treating physician requires a statement of “clear and convincing” reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 4 1 the agency did not invoke in making its decision.” 2 Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001). 3 4 In the present case, the ALJ stated illegitimate reasons for 5 rejecting the opinion of Dr. Halbridge. First, the ALJ stated that 6 Dr. Halbridge’s “statements that provided medically acceptable 7 clinical and diagnostic findings indicated the same exact findings 8 during each visit. . . .” (A.R. 995). 9 inaccurate. The ALJ’s statement is Dr. Halbridge’s statements do not “indicate[] the same 10 exact findings during each visit. . . .” For example, Dr. Halbridge’s 11 statements for different visits indicate different findings for: 12 cervical spine flexion; cervical spine extension; cervical spine right 13 lateral bending; cervical spine left lateral bending; cervical spine 14 right rotation; and cervical spine left rotation (see, e.g., A.R. 15 1520-21, 1532-33, 1539, 1545, 1551, 1556-57, 1562-63, 1568, 1574-75, 16 1580-81).2 17 warrant remand. 18 Admin., 166 F.3d 1294, 1297 (9th Cir. 1999). An ALJ’s material mischaracterization of the record can See, e.g., Regennitter v. Commissioner of Social Sec. 19 20 Second, and relatedly, the ALJ erred in speculating or assuming 21 from the ALJ’s inaccurate “same exact findings” premise that “Dr. 22 Halbridge made one physical determination and possibly continued to 23 use those physical findings despite possible improvement in the 24 claimant’s conditions” (A.R. 995). Rejection of a treating 25 26 27 28 2 The Court specifically references these differing cervical motion findings because such findings appear particularly material to an evaluation of Plaintiff’s neck pain. Dr. Halbridge’s statements indicate other differing findings as well. 5 1 physician’s opinion may not properly be based on “unsupported and 2 unwarranted speculation that the . . . doctor[] [was] misrepresenting 3 the claimant’s condition. . . .” 4 Furthermore, an ALJ “may not assume that doctors routinely lie in 5 order to help their patients collect disability benefits.” 6 (citations and quotations omitted). 7 speculated or assumed that Dr. Halbridge authored multiple statements 8 detailing physical examinations that either never took place or never 9 yielded the reported findings, and the ALJ should not have concluded Lester v. Chater, 81 F.3d at 832. Id. The ALJ should not have 10 therefrom that Dr. Halbridge’s opinion was baseless. See Smolen v. 11 Chater, 80 F.3d at 1288 (“If the ALJ thought he needed to know the 12 basis of Dr. Hoeflich’s opinions in order to evaluate them, he had a 13 duty to conduct an appropriate inquiry, for example, by subpoenaing 14 the physicians or submitting further questions to them. 15 have continued the hearing to augment the record”) (citations 16 omitted); see also Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) 17 (“the ALJ has a special duty to fully and fairly develop the record 18 and to assure that the claimant’s interests are considered”). He could also 19 20 Third, in rejecting Dr. Halbridge’s opinion, the ALJ improperly 21 relied on the “relatively conservative treatment” received by 22 Plaintiff (A.R. 995). 23 recommend a more aggressive course of treatment, absent more, is not a 24 legitimate reason to discount the physician’s subsequent medical 25 opinion about the extent of disability.” 26 F.3d 664, 677 (9th Cir. 2017). 27 of Plaintiff’s treatment as “relatively conservative” may well be 28 inaccurate. “[T]he failure of a treating physician to Trevizo v. Berryhill, 871 Moreover, the ALJ’s characterization See, e.g., Lapierre-Gutt v. Astrue, 382 Fed. App’x 662, 6 1 664 (9th Cir. 2010) (treatment including narcotic pain medication and 2 cervical fusion surgery deemed not conservative); Aguilar v. Colvin, 3 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014) (“there is evidence 4 in the record that Plaintiff has been prescribed narcotic pain 5 medications, such as Vicodin. . . . 6 Plaintiff for overly conservative treatment when he has been 7 prescribed strong narcotic pain medications”); Brunkalla-Saspa v. 8 Colvin, 2014 WL 1095958, at *1 (C.D. Cal. March 18, 2014) (“[T]he ALJ 9 found that Plaintiff had been conservatively treated with Vicodin. It would be difficult to fault 10 . . . But Vicodin qualifies as strong medication to alleviate pain”) 11 (citations and quotations omitted); Sanchez v. Colvin, 2013 WL 12 1319667, at *4 (C.D. Cal. March 29, 2013) (“Surgery is not 13 conservative treatment”);3 but see Bartlett v. Colvin, 2015 WL 14 2412457, at *12 (D. Or. May 21, 2015) (characterizing the prescription 15 of Vicodin as “conservative treatment”). 16 17 The Court is unable to deem the errors in the present case to 18 have been harmless. See Treichler v. Commissioner, 775 F.3d 1090, 19 1105 (9th Cir. 2014) (“Where, as in this case, an ALJ makes a legal 20 error, but the record is uncertain and ambiguous, the proper approach 21 is to remand the case to the agency”); see also Molina v. Astrue, 674 22 F.3d 1104, 1115 (9th Cir. 2012) (an error “is harmless where it is 23 inconsequential to the ultimate non-disability determination”) 24 (citations and quotations omitted); McLeod v. Astrue, 640 F.3d 881, 25 887 (9th Cir. 2011) (error not harmless where “the reviewing court can 26 determine from the ‘circumstances of the case’ that further 27 3 28 Doctors have recommended surgery for Plaintiff’s neck condition (A.R. 15, 843, 1242-43). 7 1 administrative review is needed to determine whether there was 2 prejudice from the error”). 3 4 Remand is appropriate because the circumstances of this case 5 suggest that further administrative review could remedy the errors 6 discussed herein. 7 Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative 8 determination, the proper course is remand for additional agency 9 investigation or explanation, except in rare circumstances); Dominguez McLeod v. Astrue, 640 F.3d at 888; see also INS v. 10 v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district 11 court concludes that further administrative proceedings would serve no 12 useful purpose, it may not remand with a direction to provide 13 benefits”); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand 14 for further administrative proceedings is the proper remedy “in all 15 but the rarest cases”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th 16 Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further 17 proceedings rather than for the immediate payment of benefits is 18 appropriate where there are “sufficient unanswered questions in the 19 record”). 20 present record. 21 required to find Plaintiff disabled at all times between the June 6, 22 2011 alleged onset date and the September 30, 2015 expiration of 23 insured status even if Dr. Halbridge’s opinion were credited. 24 Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). There remain significant unanswered questions in the For example, it is not clear that the ALJ would be See 25 26 The Court is mindful of the fact that the Court remanded this 27 matter once before. However, the instant case does not present a 28 situation in which the Administration made the same mistakes twice, or 8 1 a situation in which further administrative proceedings would only 2 delay the inevitable receipt of disability benefits. 3 4 CONCLUSION 5 6 For all of the foregoing reasons,4 Plaintiff’s and Defendant’s 7 motions for summary judgment are denied and this matter is remanded 8 for further administrative action consistent with this Opinion. 9 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 DATED: April 4, 2018. 13 14 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. “[E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled.” Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). 9
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