Rosendo Soto Valenzuela v. Nancy A. Berryhill, No. 5:2018cv01303 - Document 25 (C.D. Cal. 2019)

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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Rosendo Soto Valenzuela v. Nancy A. Berryhill Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROSENDO SOTO VALENZUELA, Plaintiff, 12 13 14 15 CASE NO. EDCV 18-1303 SS v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 21 Rosendo Soto Valenzuela (“Plaintiff”) brings this action 22 seeking to overturn the decision of the Acting Commissioner of 23 Social 24 application for Disability Insurance Benefits (“DIB”). The parties 25 consented pursuant to 28 U.S.C. § 636(c) to the jurisdiction of 26 the undersigned United States Magistrate Judge. 27 13). For the reasons stated below, the decision of the Commissioner Security (the “Commissioner” or “Agency”) denying his (Dkt. Nos. 11- 28 Dockets.Justia.com 1 is REVERSED, and this case is REMANDED for further administrative 2 proceedings consistent with this decision. 3 4 II. 5 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 6 7 To qualify for disability benefits, a claimant must 8 demonstrate a medically determinable physical or mental impairment 9 that prevents the claimant from engaging in substantial gainful 10 activity and that is expected to result in death or to last for a 11 continuous period of at least twelve months. 12 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 13 The impairment must render the claimant incapable of performing 14 work 15 employment that exists in the national economy. 16 180 17 § 423(d)(2)(A)). previously F.3d performed 1094, 1098 or (9th any Cir. other 1999) Reddick v. Chater, substantial gainful Tackett v. Apfel, (citing 42 U.S.C. 18 benefits, an 20 Administrative Law Judge (“ALJ”) conducts a five-step inquiry. 20 21 C.F.R. §§ 404.1520, 416.920. 19 To decide if a claimant is entitled to The steps are: 22 23 (1) Is the claimant presently engaged in substantial gainful 24 activity? 25 not, proceed to step two. 26 (2) Is the If so, the claimant is found not disabled. claimant’s impairment 27 claimant is found not disabled. 28 three. 2 severe? If not, If the If so, proceed to step 1 (3) Does the claimant’s impairment meet or equal one of the 2 specific impairments described in 20 C.F.R. Part 404, 3 Subpart P, Appendix 1? 4 disabled. 5 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 6 so, the claimant is found not disabled. 7 to step five. 8 (5) 9 Is the claimant able to do any other work? claimant is found disabled. 10 If not, proceed If not, the If so, the claimant is found not disabled. 11 12 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 13 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 14 (g)(1), 416.920(b)-(g)(1). 15 The claimant has the burden of proof at steps one through four 16 17 and the 18 Bustamante, 262 F.3d at 953-54. 19 affirmative duty to assist the claimant in developing the record 20 at every step of the inquiry. 21 claimant meets his or her burden of establishing an inability to 22 perform past work, the Commissioner must show that the claimant 23 can perform some other work that exists in “significant numbers” 24 in 25 residual functional capacity (“RFC”), age, education, and work 26 experience. 27 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 28 may do so by the testimony of a vocational expert (“VE”) or by the Commissioner national has economy, the burden of at step five. Additionally, the ALJ has an Id. at 954. taking proof into If, at step four, the account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 3 The Commissioner 1 reference to the Medical-Vocational Guidelines appearing in 20 2 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as “the 3 grids”). 4 When a claimant has both exertional (strength-related) and non- 5 exertional limitations, the grids are inapplicable and the ALJ must 6 take the testimony of a VE. 7 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 8 1988)). Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). Moore v. Apfel, 216 F.3d 864, 869 (9th 9 10 III. 11 THE ALJ’S DECISION 12 13 The ALJ employed the five-step sequential evaluation process 14 and concluded that Plaintiff was not disabled within the meaning 15 of the Social Security Act. 16 found that Plaintiff has not engaged in substantial gainful since 17 October 14, 2013, the alleged onset date. 18 the ALJ found that Plaintiff’s mild lumbar spondylosis with lumbago 19 and mild degenerative joint disease of the left knee are severe 20 impairments.1 21 Plaintiff does not have an impairment or combination of impairments 22 that meet or medically equal the severity of any of the listings 23 enumerated in the regulations. (AR 24). (AR 22-29). At step one, the ALJ (AR 24). At step two, At step three, the ALJ determined that (AR 18-19). 24 25 26 27 28 The ALJ also found that Plaintiff’s medically determinable impairments of obstructive sleep apnea, hypertension, diabetes, obesity, and Bell’s palsy do not limit Plaintiff more than minimally and are therefore nonsevere. (AR 24-25). 1 4 1 The ALJ then assessed Plaintiff’s RFC and concluded that he 2 can perform the full range of medium work as defined in 20 C.F.R. 3 § 404.1567(c).2 4 Plaintiff is capable of performing past relevant work as a truck 5 driver, 6 economy. 7 not under a disability as defined in the Act from October 14, 2013, 8 through the date of the decision. as (AR 25). generally (AR 29). At step four, the ALJ found that performed in the national and regional Accordingly, the ALJ found that Plaintiff was (AR 29). 9 10 IV. 11 STANDARD OF REVIEW 12 13 Under 42 U.S.C. § 405(g), a district court may review the “[The] court may set 14 Commissioner’s decision to deny benefits. 15 aside the Commissioner’s denial of benefits when the ALJ’s findings 16 are based on legal error or are not supported by substantial 17 evidence in the record as a whole.” 18 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 19 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 20 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 21 “Substantial evidence is more than a scintilla, but less than 22 23 a preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. 24 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). It is “relevant 25 26 27 28 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.” 20 C.F.R. § 404.1567(c). 2 5 1 evidence which a reasonable person might accept as adequate to 2 support a conclusion.” 3 evidence supports a finding, the court must “‘consider the record 4 as a whole, weighing both evidence that supports and evidence that 5 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 6 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 7 1993)). 8 or reversing that conclusion, the court may not substitute its 9 judgment for that of the Commissioner. (Id.). To determine whether substantial If the evidence can reasonably support either affirming Reddick, 157 F.3d at 720- 10 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 11 1457 (9th Cir. 1995)). 12 13 V. 14 DISCUSSION 15 16 On June 4, 2014, Sohail K. Afra, M.D., performed a complete 17 internal medicine evaluation at the request of the Agency. (AR 18 594-600). 19 “credible” historian (AR 594, 596), complained of pain in the mid 20 back, hips, lower back, buttocks, left shoulder, right elbow, and 21 both knees. 22 back pain, with occasional radiation to the lower extremities, and 23 knee pain bilaterally, more pronounced on the left. Plaintiff, who Dr. Afra found to be a “reliable” and (AR 595). His primary complaint was chronic severe (AR 595). 24 25 On examination, Dr. Afra found reproducible pain in the 26 shoulder, hip, and elbow joints with internal rotation of the 27 shoulder joints painful and decreased. 28 the dorsolumbar region, moderate tenderness with pain was noted 6 (AR 595, 597, 598). In 1 over the paraspinal areas, with flexion decreased to 40° (normal 2 is 0-90°), extension to 15° (0-25°), lateral bending to 20° (0- 3 25°), and rotation to 20°. 4 moderate-to-severe edema of the left knee with range of motion 5 painful 6 crepitus. 7 of the left hip was painful and decreased to 50° with knees straight 8 (0-70°). 9 reduced to 90° (0-100°), internal rotation “very painful” and 10 decreased to 35° (0-40°), and external rotation “very painful” and 11 reduced to 35° (0-50°). 12 normal limits but he had difficulty walking on toes or heels. 13 599). and limited to (AR 595, 598). (AR 598). (0-30°). 110-120° (AR 597-98). (0-150°), Dr. Afra noted with significant Because of the left knee pain, flexion With knees flexed, flexion was painful and (AR 598). Plaintiff’s gait was within (AR 14 15 Dr. Afra assessed chronic low back pain, chronic knee pain 16 bilaterally, 17 swelling of the left knee with painful and limited range of motion 18 and associated muscular atrophy on the left calf, and mechanical- 19 type shoulder pain. 20 limited 21 occasionally and 10 pounds frequently, and walking, sitting, or 22 standing six hours in an eight-hour day. 23 limited 24 crawling, and crouching. 25 walking on uneven terrain, climbing ladders, and working with 26 heights. 27 to with objective (AR 599). pushing, Plaintiff (AR 600).3 pulling, to evidence moderate-to-severe Dr. Afra opined that Plaintiff was lifting occasional and carrying (AR 599-600). bending, (AR 600). kneeling, 20 pounds Dr. Afra stooping, He precluded Plaintiff from The state Agency consultants gave Dr. Afra’s If a person of Plaintiff’s age (he turned 50 on October 20, 2013), unable to communicate in English (an interpreter was used 3 28 of 7 1 opinion “great weight” and concluded that Plaintiff was limited to 2 light work. (AR 351-52, 360-62). 3 4 An ALJ must take into account all medical opinions of record. 5 20 C.F.R. §§ 404.1527(b), 416.927(b). The regulations “distinguish 6 among the opinions of three types of physicians: (1) those who 7 treat the claimant (treating physicians); (2) those who examine 8 but do not treat the claimant (examining physicians); and (3) those 9 who neither examine nor treat the claimant (nonexamining 10 physicians).” 11 as amended (Apr. 9, 1996). 12 opinion carries more weight than an examining physician’s, and an 13 examining physician’s opinion carries more weight than a reviewing 14 [(nonexamining)] physician’s.” 15 1195, 1202 (9th Cir. 2001); accord Garrison v. Colvin, 759 F.3d 16 995, 1012 (9th Cir. 2014). 17 physician’s testimony depends ‘on the degree to which they provide 18 supporting explanations for their opinions.’” 19 Soc. Sec., 528 F.3d 1194, 1201 (9th Cir. 2008) (quoting 20 C.F.R. 20 § 404.1527(d)(3)). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), “Generally, a treating physician’s Holohan v. Massanari, 246 F.3d “The weight afforded a non-examining Ryan v. Comm’r of 21 22 “To reject an uncontradicted opinion of a treating or 23 examining doctor, an ALJ must state clear and convincing reasons 24 that are supported by substantial evidence.” Bayliss v. Barnhart, 25 26 27 28 at the hearing and at Dr. Afra’s examination), and with unskilled past relevant work and no transferable skills (AR 342) was limited to light work as Dr. Afra’s opinion indicates, he would be found disabled. See grids Rule 202.09. 8 1 427 F.3d 1211, 1216 (9th Cir. 2005). 2 doctor’s opinion is contradicted by another doctor’s opinion, an 3 ALJ may only reject it by providing specific and legitimate reasons 4 that 5 Reddick, 157 F.3d at 725 (the “reasons for rejecting a treating 6 doctor’s credible opinion on disability are comparable to those 7 required for rejecting a treating doctor’s medical opinion.”). 8 “The ALJ can meet this burden by setting out a detailed and thorough 9 summary of the facts and conflicting clinical evidence, stating are supported by substantial “If a treating or examining evidence.” Id.; see also 10 his interpretation thereof, and making findings.” 11 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citation omitted). 12 “When an examining physician relies on the same clinical findings 13 as a treating physician, but differs only in his or her conclusions, 14 the conclusions of the examining physician are not ‘substantial 15 evidence.’” Trevizo v. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 16 The ALJ gave Dr. Afra’s opinion “little weight.” 17 (AR 27). 18 He found the opinion to be “inconsistent with the mild and minimal 19 degenerative changes revealed in imaging studies, and with the 20 normal strength, reflexes, gait, coordination, and range of motion 21 [Plaintiff] 22 (citations omitted).4 23 opinion of Herman R. Schoene, M.D., who conducted an orthopedic 24 evaluation in October 2016 (AR 769-73). 25 was exhibited contradicted by in physical examinations.” (AR 27) Dr. Afra’s opinion was contradicted by the a later medical As Dr. Afra’s opinion evaluation, the ALJ was 26 4 27 28 The ALJ similarly rejected the opinions expressed by the state Agency consultants, who had given Dr. Afra’s opinion “great weight.” (AR 27). 9 1 required to give specific and legitimate reasons that are supported 2 by substantial evidence in the record for rejecting Dr. Afra’s 3 opinion. 4 examining doctor, even if contradicted by another doctor, can only 5 be rejected for specific and legitimate reasons that are supported 6 by substantial evidence in the record”). 7 Dr. Afra’s opinion does not satisfy these standards. See Lester, 81 F.3d at 830–31 (“the opinion of an The ALJ’s rejection of 8 9 First, Dr. Afra’s opinion is supported by his own objective 10 examinations. In evaluating a consultative examiner’s opinion, 11 the ALJ must consider the extent to which the opinion is supported 12 by clinical and diagnostic examinations in determining the weight 13 to give the opinion. 14 Cir. 2017); 20 C.F.R. §§ 404.1527(c)(2)–(6), 416.927(c)(2)-(6). 15 While the ALJ summarized some of Dr. Afra’s clinical conclusions 16 (AR 27), the ALJ failed to acknowledge that Plaintiff had painful 17 and limited range of motion in his shoulders, elbows, hips, knees, 18 and lumbar spine (AR 597-98). 19 evidence 20 favorable to the claimant.” 21 (9th Cir. 2016) (citing Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th 22 Cir. 2014)). 23 and lower body accompanied with significant pain is consistent with 24 being physically limited to light work, as Dr. Afra (and the state 25 Agency physicians) opined. unfavorable Revels v. Berryhill, 874 F.3d 648, 654 (9th to the “[A]n ALJ may not pick and choose claimant while ignoring evidence Cox v. Colvin, 639 F. App’x 476, 477 Plaintiff’s reduced range of motion in both his upper 26 27 28 Second, the imaging studies cited by the ALJ were neither “mild” nor indicated “minimal” degenerative changes. 10 X-rays of 1 Plaintiff’s right knee in October 2015 indicated moderate knee 2 joint effusion. 3 cervical and thoracic spine indicated “degenerative changes,” they 4 did not indicate whether the changes were mild, moderate, or 5 severe. 6 a 7 Plaintiff’s medical condition cannot provide the medical evidence 8 needed to support the ALJ’s RFC determination. 9 F.3d at 1102-03 (there was no medical evidence to support the ALJ’s 10 determination); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 11 1975) (an ALJ is forbidden from making his or her own medical 12 assessment 13 Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb 14 to the temptation to play doctor and make their own independent 15 medical findings”). 16 lumbar spine found mild discogenic spondylosis at L4-L5 and L5-S1 17 and 18 moderate facet arthrosis at L4-l5. 19 ALJ appears to have substituted his own judgment for that of Dr. 20 Afra’s and failed to give specific and legitimate reasons for doing 21 so. 22 nerve roots, without indicating whether they were mild, moderate 23 or severe. 24 spine indicated “moderate degenerative changes at all thoracic 25 levels with marginal spur formation present.” (AR 583-84). (AR 583). medical mild Indeed, the ALJ is not qualified to make such assessment beyond facet Further, while x-rays of Plaintiff’s on that his The own. demonstrated by ALJ’s the lay opinion of See Tackett, 180 record); Rohan v. Similarly, while a May 2014 MRI of Plaintiff’s arthrosis at L5-S1, the same study indicated (AR 728; see id. 61-62). The The MRI study also found effacements and encroachment of the (AR 728). An August 2016 x-ray of Plaintiff’s thoracic 26 27 28 11 (AR 796) (emphasis 1 added). Thus, imaging studies indicated more than “mild and 2 minimal” findings and were consistent with Dr. Afra’s opinion.5 3 4 Finally, the physical examinations cited by the decision below 5 were consistent with some of Dr. Afra’s findings. In March 2015, 6 Plaintiff exhibited reduced dorsolumbar range of motion similar to 7 Dr. Afra’s assessment. 8 Dr. Schoene came to a different conclusion as to Plaintiff’s 9 functional abilities, he too found that Plaintiff had limited range 10 of motion in his lumbar spine: lateral flexion limited to 15/25° 11 bilaterally, extension to 10/25°, and forward flexion to 45/90°. 12 (AR 771). 13 December 2016 found full range of motion in Plaintiff’s neck, the 14 examinations did not assess the range of motion in Plaintiff’s 15 lumbar spine. (Compare AR 597-98, with id. 751). While Further, while physical examinations in October and (AR 829, 835). 16 Defendant argues that in rejecting the opinions of Dr. Afra 17 18 and the Agency consultants, the ALJ properly 19 subsequent orthopedic consultative examination by Dr. Schoene. 20 (Dkt. No. 24 at 3-7). Dr. Schoene examined Plaintiff at the request 21 of the Agency on October 18, 2016. (AR 769-73). relied on the Dr. Schoene found 22 5 23 24 25 26 27 28 Defendant emphasizes that the August 2016 x-ray indicated that “the moderate changes in Plaintiff’s spine were ‘unremarkable for the patient’s age.’” (Dkt. No. 4 at 5) (quoting AR 796). Nevertheless, “unremarkable” degenerative narrowing of the thoracic spine for an individual of age 52 does not contradict Dr. Afra’s clinical findings that Plaintiff had diminished range of motion in his lumbar spine, hips, and knees. (AR 597-98). Indeed, while Dr. Afra did not explicitly test Plaintiff’s thoracic spine, he found full range of motion in Plaintiff’s cervical spine. (AR 597). 12 1 full range of motion 2 wrists, 3 Nevertheless, as noted above, Plaintiff displayed reduced range of 4 motion in his back that was consistent with Dr. Afra’s findings. 5 (Compare AR 771, with id. 597-98). 6 Plaintiff can lift/carry 50 pounds occasionally and 25 pounds 7 frequently and can stand, walk, or sit six hours in an eight-hour 8 workday. hands, in hips, Plaintiff’s ankles, and neck, shoulders, knees. (AR elbows, 771-72). Dr. Schoene opined that (AR 772). 9 10 The ALJ gave Dr. Schoene’s opinion “great weight,” finding it 11 consistent with the “normal” x-ray performed by Schoene, the “very 12 conservative” course 13 examinations. (AR 28). 14 substantial evidence. 15 and physical examinations were not “normal.” 16 indicated that he “obtained x-rays of the lumbosacral spine, and 17 these are normal” (AR 772), the x-ray results were not included in 18 the record. Plaintiff objected to Dr. Schoene’s report, requesting 19 that the ALJ obtain a copy of the x-rays, if they in fact exist. 20 (AR 323-24). 21 investigate and issue a ruling (AR 324), but the ALJ’s decision 22 was issued without the ALJ ruling on this particular issue. Further 23 calling into doubt the existence of the normal x-rays, just two 24 months prior to Dr. Schoene’s examination, x-rays of Plaintiff’s 25 lumbar 26 multiple lumbar levels and arthritic disease of facet joints at 27 all levels. 28 concluding that Plaintiff’s care was conservative. spine of treatment, and the “normal” physical The ALJ’s assessment is not supported by First, as discussed above, imaging studies While Dr. Schoene The ALJ acknowledged the objection, stating he would indicated (AR 797). hypertrophic degenerative changes at Finally, the decision below erred in 13 Plaintiff was 1 treated for his chronic back and joint pain with epidural steroid 2 injections and hydrocodone.6 3 of hydrocodone, a strong opioid medication, and epidural injections 4 cannot 5 Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010) 6 (treatment consisting of “copious” amounts of narcotics, occipital 7 nerve blocks, and trigger point injections not conservative); 8 Madrigal v. Berryhill, No. CV 17 0824, 2017 WL 5633028, at *6 (C.D. 9 Cal. fairly Nov. be 21, described 2017) (AR 732, 861). as The consistent use “conservative” (“[P]laintiff has been treatment. prescribed See strong 10 prescription pain medications, including the narcotic medication 11 Norco, has received spinal injections, and has been referred for a 12 lap band surgery consultation, treatment that is not necessarily 13 conservative.”). 14 opinion 15 evidence. is due Thus, the ALJ’s determination that Dr. Schoene’s great weight is not supported by substantial 16 In sum, the ALJ failed to provide specific and legitimate 17 18 reasons for rejecting Dr. Afra’s opinion. 19 reevaluate the weight to be afforded Dr. Afra’s opinion.7 On remand, the ALJ shall 20 21 22 23 24 25 26 27 28 Hydrocodone is “an opioid used to treat severe pain of a prolonged duration.” <https://en.wikipedia.org/wiki/Hydrocodone> (last visited April 29, 2019). 6 7 Plaintiff also argues that the ALJ erred in rejecting his subjective symptoms. (Dkt. No. 21 at 12-17). However, it is unnecessary to reach Plaintiff’s arguments on this ground, as the matter is remanded for the alternative reasons discussed at length in this Order. 14 1 VI. 2 CONCLUSION 3 4 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 5 the decision of the Commissioner and REMANDING this matter for 6 further proceedings consistent with this decision. 7 ORDERED that the Clerk of the Court serve copies of this Order and 8 the Judgment on counsel for both parties. IT IS FURTHER 9 10 DATED: May 1, 2019 11 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 12 13 14 15 THIS DECISION IS NOT INTENDED FOR PUBLICATION LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. 16 17 18 19 20 21 22 23 24 25 26 27 28 15 IN WESTLAW,

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