Kathryn Marie Morgan v. Carolyn W Colvin, No. 8:2016cv00305 - Document 16 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is VACATED, and the matter is REMANDED, without benefits, for further proceedings. (mz)
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Kathryn Marie Morgan v. Carolyn W Colvin Doc. 16 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 KATHRYN MARIE MORGAN, 13 Plaintiff, v. 14 15 16 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 17 ) No. SA CV16-00305 (AS) ) ) MEMORANDUM OPINION AND ) ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY 20 ORDERED that this matter is remanded 21 for further administrative action consistent with this Opinion. 22 I. PROCEEDINGS 23 24 25 On December 4, 2015, Plaintiff Kathryn Marie Morgan 26 (“Plaintiff”) filed a Complaint seeking review of the Commissioner’s 27 denial of Plaintiff’s application for a period of disability and 28 1 Dockets.Justia.com 1 disability insurance benefits (“DIB”). 2 June 24, 2016, Defendant filed an Answer to the Complaint and the 3 Certified Administrative Record (“AR”). 4 The 5 Magistrate Judge. 6 Joint Stipulation (“Joint Stip.”) on August 31, 2016, setting forth 7 their respective positions on Plaintiff’s claims. 8 15). parties have consented to (Docket Entry No 1). On (Docket Entry Nos. 13, 14). proceed before (Docket Entry Nos. 9, 10). a United States The parties filed a (Docket Entry No. 9 10 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 11 12 Plaintiff, formerly employed as a customer service clerk and 13 office manager (AR 28), asserts disability beginning June 1, 2009, 14 based on the alleged mental and physical impairments of fibromyalgia 15 and spinal impairments. 16 Administrative Law Judge, Milan M. Dostal (“ALJ Dostal”), examined 17 the 18 expert. 19 Plaintiff benefits in a written decision. 20 sought review by the Appeals Council, and it vacated and remanded 21 ALJ Dostal’s decision on August 12, 2013. 22 hearing was held before Administrative Law Judge Joseph P. Lisiecki 23 III (“ALJ”) on January 16, 2014. 24 the ALJ denied Plaintiff benefits in a written decision. 25 35). The Appeals Council denied Plaintiff’s request to set aside the 26 ALJ’s decision on December 22, 2015. record and (A.R. heard (Joint Stip. 3). testimony 123-43). On from May On April 17, 2012, an Plaintiff 24, 2012, 28 2 ALJ a (AR 186-90). (AR 1-6). vocational Dostal (AR 173-81). (AR 144-67). 27 and denied Plaintiff A second On March 19, 2014, (A.R. 15- 1 The ALJ applied the five-step process in evaluating Plaintiff’s 2 case. 3 had not engaged in substantial gainful activity after the alleged 4 onset date. 5 the severe impairments of lumbar spine degenerative disc disease, 6 status post fusion and status post hardware removal, fibromyalgia, 7 and 8 Plaintiff’s impairments did not meet or equal a listing found in 20 9 C.F.R. Part 404, Subpart P, Appendix 1. (AR 19-30). At step one, the ALJ determined that Plaintiff (AR 21). depression. At step two, the ALJ found that Plaintiff has (AR 21). At step three, the ALJ found that (AR 21-22). 10 11 Before proceeding to step four, the ALJ found that Plaintiff 12 had the residual functional capacity (“RFC”)1 to perform sedentary 13 work in that she can do “sedentary lifting,” sit for 6 hours in an 14 8-hour 15 workday. 16 that “in spite of” damage to Plaintiff’s lumbar spine, Plaintiff 17 “continues to have full motor strength in the lower extremities, 18 intact sensation, generally normal range of motion, and generally 19 normal and equal reflexes,” which would normally place plaintiff’s 20 lifting capacity at a light range, but the ALJ reduced Plaintiff’s 21 lifting 22 symptoms from Plaintiff’s fibromyalgia. 23 determined that Plaintiff can sit for 6 hours in an 8-hour workday 24 because 25 extremities that would necessitate a lessened sitting capacity,” and 26 27 workday, and (A.R. 24). capacity “of the to stand and walk 2 hours total in an 8-hour In making this finding, the ALJ determined sedentary lack of limitations problems 1 because (AR 25). with of the pain The ALJ then [Plaintiff’s] lower A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 28 3 1 found 2 movements, such as stooping, bending, and kneeling, and precluded 3 from climbing ladders, ropes, and scaffold because of “her lumbar 4 spine impairment.” that Plaintiff is able to engage in limited postural (Id.). 5 6 In making this finding, the ALJ considered the opinions of 7 state-agency medical consultants Kenneth Glass, M.D. and H. Han, 8 M.D. 9 6 hours in an 8-hour workday and occasionally engage in kneeling, (AR 26). Both consultants found that Plaintiff could sit for 10 bending, and stooping. 11 these 12 determination. 13 Plaintiff could lift and carry 20 pounds occasionally and 10 pounds 14 frequently and stand and walk for 4 hours in an 8-hour workday. 15 452-58, 516-17). 16 finding 17 [Plaintiff’s] fibromyalgia syndrome symptoms.” assessments that and (AR 452-58, 516-17). incorporated (See AR 25-26). the these The ALJ agreed with limitations in the RFC The consultants also found that (AR The ALJ gave “less weight” to these assessments, consultants did not “sufficiently account for (Id.). 18 The ALJ rejected favorable opinion evidence from Plaintiff’s 19 20 treating physician, Dr. Zepeda. 21 functional capacity questionnaires in February 2011, October 2011, 22 and December 2013 regarding Plaintiff’s physical limitations. 23 387, 531-35, 712-17). 24 sitting in an 8-hour workday; 1-2 hours of standing and walking in 25 an 26 occasionally; 27 stooping (AR 387, 532, 715), and surmised that Plaintiff would miss 8-hour workday; (AR 26-27). Dr. Zepeda filled out (AR Dr. Zepeda limited Plaintiff to 2-3 hours of lifting precluded and Plaintiff 28 4 carrying from less than kneeling, 10 pounds bending, and 1 three or more days of work per month because of her impairments. 2 (AR 535, 716). 3 Plaintiff’s 4 assessments of Dr. Glass and Dr. Han. The ALJ implicitly rejected Dr. Zepeda’s opinion on sitting and posterior limitations in favor of the (See AR 25-27). 5 The 6 ALJ justified giving “little weight to all of [Dr. 7 Zepeda’s] opinions” finding that they were partially based on the 8 “unsubstantiated” 9 canal stenosis. syndrome diagnoses of (AR 27). diagnosis chronic pain syndrome and lumbar The ALJ rejected Dr. Zepeda’s chronic 10 pain 11 supporting the diagnosis. 12 canal 13 magnetic 14 despite Dr. Zepeda’s much reported diagnosis of canal syndrome. 15 28). 16 supported 17 primarily based on [Plaintiff’s] subjective complaints.” stenosis as resonance a because he (AR 28). diagnosis scan found objective records The ALJ also rejected lumbar because (“MRI”) no did Plaintiff’s most recent not mention canal stenosis, (AR Thus, the ALJ determined that Dr. Zepeda’s diagnoses “were not by the full medical evidence of record as they are (Id.). 18 The only other medical opinion evidence assigned weight by the 19 20 ALJ was the hearing 21 orthopedic surgeon. 22 weight,” 23 effects 24 specialty as an orthopedist.” finding of testimony (AR 26). that Dr. fibromyalgia given by Dr. Erc Schmitter, an The ALJ gave the assessment “less Schmitter because it could was not account “outside his for area the of (Id.). 25 26 27 At step four, the ALJ determined that Plaintiff was not able to perform her past relevant work. 28 5 (AR 28-29). At step five, the 1 ALJ found Plaintiff was able to perform jobs consistent with her 2 age, 3 numbers 4 Plaintiff could perform the requirements of an assembler (Dictionary 5 of Occupational Titles (“DOT”) No. 734.687-018) and table worker, 6 visual inspection (DOT 739.687-182). (AR 29-30). 7 found that Plaintiff was not disabled. (AR 30). education, in the and medical national limitations economy. (AR existing 29-30). in significant In particular, Thus, the ALJ 8 9 Plaintiff requested that the Appeals Council review the ALJ’s 10 decision. (AR 1). The request was denied on December 22, 2015. 11 (AR 1-5). The ALJ’s decision then became the final decision of the 12 Commissioner, allowing this Court to review the decision. 13 U.S.C. §§ 405(g), 1383(c). See 42 14 III. STANDARD OF REVIEW 15 16 17 This court reviews the Administration’s decision to determine 18 if the decision is free of legal error and supported by substantial 19 evidence. 20 F.3d 1157, 1161 (9th Cir. 2012). 21 than a mere scintilla, but less than a preponderance. 22 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). 23 substantial evidence supports a finding, “a court must consider the 24 record as a whole, weighing both evidence that supports and evidence 25 that detracts from the [Commissioner’s] conclusion.” 26 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). 27 the evidence can reasonably support either affirming or reversing See Brewes v. Commissioner of Social Sec. Admin., 682 28 6 “Substantial evidence” is more Garrison v. To determine whether Aukland v. As a result, “[i]f 1 the ALJ’s conclusion, [a court] may not substitute [its] judgment 2 for that of the ALJ.” 3 882 (9th Cir. 2006). Robbins v. Soc. Sec. Admin., 466 F.3d 880, 4 5 IV. PLAINTIFF’S CONTENTIONS 6 7 Plaintiff contends that the ALJ (1) failed to properly consider 8 the medical evidence contained in the opinions of her treating pain 9 management physician in assessing her residual functional capacity; 10 and (2) committed harmful error in finding Plaintiff’s subjective 11 complaints not credible. (Joint Stip. 5-15, 22-25). 12 13 V. DISCUSSION 14 15 After reviewing the record, the Court finds that the ALJ’s RFC 16 determination failed to properly account for the combined effects of 17 all of Plaintiff’s impairments and consider Dr. Zepeda’s opinion and 18 related 19 stenosis. diagnoses of chronic pain syndrome and lumbar canal The Court therefore remands for further consideration. 20 21 A. The ALJ Erred In Failing To Assess The Opinion Of 22 Plaintiff’s Treating Physician In Determining Plaintiff’s 23 RFC. 24 25 Although a treating physician’s opinion is generally afforded 26 the greatest weight in disability cases, it is not binding on an ALJ 27 with respect to the existence of an impairment or the ultimate 28 7 1 determination of disability. 2 359 F.3d 1190, 1195 (9th Cir. 2004); Magallanes v. Bowen, 812 F.2d 3 747, 4 physician’s opinion depends on whether it is supported by sufficient 5 medical data and is consistent with other evidence in the record. 6 20 C.F.R. § 416.927(b)-(d); Social Security Ruling (“SSR”) 96-2p. 7 To reject the uncontradicted opinion of a treating physician, the 8 ALJ must give “clear and convincing reasons that are supported by 9 substantial evidence.” 751 (9th Cir. Batson v. Comm'r of Soc. Sec. Admin., 1989). The weight given to a treating Ghanim v. Colvin, 763 F.3d 1154, 1160–61 10 (9th Cir. 2014) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 11 (9th Cir. 2005)). 12 by another doctor, the ALJ must provide “specific and legitimate 13 reasons” for rejecting the treating physician’s opinion. 14 Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Reddick v. Chater, 157 15 F.3d 715, 725 (9th Cir. 1998). If the treating doctor's opinion is contradicted Orn v. 16 Plaintiff 17 asserts reasons2 that ALJ rejecting did provide Plaintiff’s pain management physician, regarding his diagnosis of 20 lumbar canal stenosis and chronic pain syndrome. 21 15). 22 concluded that there is no objective finding of lumbar stenosis, that the of Dr. and 19 contends opinion clear convincing Plaintiff the not 18 Specifically, for the Zepeda, (Joint Stip. 5ALJ improperly 23 24 25 26 27 2 Plaintiff argues that Dr. Zepeda’s opinion was uncrontradicted by other physicians’ opinions, but, as discussed in Part V.A infra, Dr. Zepeda’s opinion was contradicted by two nonexamining medical consultants, which alters the standard of review to “specific and legitimate,” rather than “clear and convincing” reasons. Compare Ghanim, 763 F.3d at 1160–61; with Orn, 495 F.3d at 632. 28 8 1 despite a 2009 MRI and x-rays showing lumbar canal stenosis and a 2 2012 MRI showing lumbar foraminal stenosis. Further, the ALJ made an 3 “unsubstantiated presumption” in finding “a meaningful distinction 4 between the symptoms and limitations that would flow from neural 5 foraminal stenosis versus canal stenosis.” (Joint Stip. 12). 6 7 Defendant argues that the ALJ properly rejected the opinion of 8 Dr. Zepeda because Plaintiff’s treatment records were based entirely 9 on 10 Plaintiff’s subjective complaints and also functional limitations assessed by Dr. Zepeda. contradicted the (Joint Stip. 20). 11 12 In rejecting Dr. Zepeda’s opinions, the ALJ implicitly relied 13 on the opinions of Dr. Glass and Dr. Han, non-examining medical 14 consultants. 15 by 16 rejection of the opinion of an examining or treating physician.” See 17 Lester, 81 F.3d 821 (9th Cir. 1995); Pitzer v. Sullivan, 908 F.2d 18 502, 506 n. 4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 19 1456 20 legitimate reasons, in addition to the contradicting opinion of a 21 non-examining 22 rejection of a treating physician’s opinion. 23 Comm'r of Soc. Sec. Admin., 169 F.3d 595, 602-03 (9th Cir. 1999) 24 (citing Magallanes, 881 F.2d at 751–55); Andrews, 53 F.3d 1035, 1043 25 (9th Cir. 1995); Roberts v. Shalala, 66 F.3d 179 (9th Cir. 1995). itself (9th “The opinion of a non-examining medical advisor cannot constitute Cir. 1984). medical substantial An ALJ evidence must professional, 26 27 28 9 still in that provide order to justifies specific support the and his See, e.g., Morgan v. 1 Here, the ALJ rejected the chronic pain syndrome diagnosis of 2 Dr. Zepeda. In justifying his conclusion, the ALJ merely stated that 3 the diagnosis was “not supported by objective records.” 4 The ALJ cannot, however, state in conclusory terms that a treating 5 physician’s opinion is objectively unfounded. 6 cite to the record to support the assertion that the opinion of a 7 treating physician is not supported by objective medical evidence. 8 Reddick, 157 F.3d at 725. 9 conclusions. (AR 27). Instead, the ALJ must (“The ALJ must do more than offer his He must set forth his own interpretations and explain 10 why they, rather than the doctors, are correct.”). 11 provide 12 chronic pain syndrome, the ALJ has “prevented the parties and the 13 court from being able to analyze his reasoning.” 14 No. 2:14-CV-2616-CKD, 2015 WL 7271750, at *6 (E.D. Cal. Nov. 18, 15 2015). 16 pain syndrome diagnosis without providing further justification. specific and legitimate reasons to By failing to reject Dr. Zepeda’s Vera v. Colvin, Accordingly, the ALJ erred in rejecting Dr. Zepeda’s chronic 17 18 The ALJ also failed to give specific and legitimate reasons for 19 discounting Dr. Zepeda’s canal lumbar stenosis diagnosis and related 20 functional limitations. 21 because the 2012 MRI did “not mention canal stenosis at any level.” 22 (AR 27). 23 similar 24 limitations.3 25 made a meaningful distinction between canal and foraminal stenosis, 26 27 The ALJ rejected Dr. Zepeda’s diagnosis Yet the same MRI showed evidence of foraminal stenosis, a form of spinal stenosis with (AR 554; Joint Stip. 12). 3 similar symptoms and Indeed, courts have not The ALJ did not mention the presence of foraminal stenosis in his explanation for rejecting Dr. Zepeda’s diagnosis. (AR 27, 554). 28 10 1 instead opting for the term “spinal stenosis” to refer to canal 2 stenosis, foraminal stenosis, and spondylosis. 3 v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1158 (9th Cir. 2008); 4 Iatridis v. Astrue, 501 F. Supp. 2d 1267, 1274 (C.D. Cal. 2007); 5 Lawson v. Massanari, 231 F. Supp. 2d 986, 990 n.4 (D. Or. 2001) 6 (citing Dorland's Illustrated Medical Dictionary 1404, 1564, 1576 7 (28th ed.1994) (“Spinal stenosis is narrowing of the spinal canal 8 caused by encroachment of bone into the space around the spinal 9 cord. Foraminal narrowing is See, e.g., Carmickle stenosis specific to the 10 intervertebral opening. 11 disease affecting the vertebrae and intervertebral discs and can 12 cause stenosis and nerve root compression. Its symptoms are pain, 13 stiffness, 14 Plaintiff’s orthopedic surgeon did not distinguish between the two 15 labels, diagnosing Plaintiff with “mild L4-5 stenosis.” 16 Accordingly, 17 diagnosis as objective evidence of no diagnosis. and Lumbar spondylosis is a degenerative joint sciatic the ALJ radiation.”)). improperly Similarly, correlated a Dr. Lin, (AR 401). narrowly labeled 18 The ALJ’s conclusion would have been supported by the record, 19 20 if Plaintiff was asymptomatic or discontinued treatment. 21 Plaintiff continued treatment, with epidural injections and pain 22 medications; presented with a wide gait; and repeatedly showed signs 23 of pain upon palpation of the thoracic and lumbar facets, lumbar 24 intervertebral 25 positive facet loading to “left>right;” and “palpable trigger points 26 in muscles of the low back.” 27 ALJ erred in spaces, giving and little bilateral sacroiliac joints, (AR 559, 562-62, 565, 641). weight 28 11 to Dr. Zepeda’s However, with Thus, the opinions on 1 Plaintiff’s 2 determination. limitation from lumbar canal stenosis in the RFC 3 4 Moreover, the opinion of Dr. Zepeda aligns with the diagnosis 5 and examinations done by Dr. Lin, Plaintiff’s orthopedic surgeon. 6 The ALJ ignored Dr. Lin’s conferring diagnosis and examinations, 7 despite their probative value. 8 Cir. 2000) (evidence that does not support the decision may not be 9 ignored, especially when Godbey v. Apfel, 238 F.3d 803 (7th the evidence is probative). During 10 examination, Plaintiff displayed abnormal lumbosacral spine flexion 11 and extension. 12 Plaintiff’s date last insured. 13 that showed moderate spondylosis, recommending removal of patient’s 14 hardware to improve her pain. 15 be viewed as giving weight to Dr. Zepeda’s opinion that Plaintiff 16 continued to suffer from lumbar spine limitations past Patient’s 17 2012 MRI. See Lester, 81 F.3d at 832 (A similarity of conclusions 18 between 19 doctors as opposed to reject). (AR 415-16). doctors provides Her condition did not improve past In 2013, Dr. Lin reviewed x-rays (AR 699). reason to Dr. Lin’s diagnosis should credit the opinions of both 20 B. 21 Remand Is Warranted 22 The decision whether to remand for further proceedings or order 23 24 an immediate 25 discretion. 26 2000). 27 administrative award of benefits Harman v. Apfel, Where no useful proceedings, is 211 purpose or within F.3d would where 28 12 the the 1172, be district 1175-78 served record has court’s (9th by Cir. further been fully 1 developed, it is appropriate to exercise this discretion to direct 2 an immediate award of benefits. 3 whether to remand for further proceedings turns upon the likely 4 utility 5 circumstances of the case suggest that further administrative review 6 could 7 McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman, 211 8 F.3d at 1179-81. of such remedy the Id. at 1179 (“[T]he decision of proceedings.”). Commissioner’s Nonetheless, errors, remand is where the appropriate. 9 10 Here, the Court remands because the ALJ failed to provide 11 specific 12 Zepeda’s opinions on Plaintiff’s functional limitations relating to 13 Plaintiff’s chronic 14 diagnoses. The 15 necessarily be required to find Plaintiff disabled if Dr. Zepeda’s 16 opinions were properly considered in the RFC assessment. 17 therefore appropriate.4 and legitimate reasons pain record to syndrome does not give and little canal establish that weight lumbar the to Dr. stenosis ALJ would Remand is 18 19 20 21 22 4 23 24 25 26 27 In addition to the issues addressed in this order, the ALJ should consider on remand any other issues raised by Plaintiff, if necessary. “[E]valuation of the record as a whole creates serious doubt that Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995, 1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s claim that the ALJ erred in failing to find Plaintiff not fully credible (see Joint Stip. at 22-26). Because this matter is being remanded for further consideration, these issues should also be considered on remand. 28 13 1 VI. CONCLUSION 2 3 For the foregoing reasons, the decision of the Administrative 4 Law Judge is VACATED, and the matter is REMANDED, without benefits, 5 for 6 405(g). further proceedings pursuant to Sentence 4 of 42 U.S.C. 7 8 LET JUDGMENT BE ENTERED ACCORDINGLY. 9 10 11 12 Dated: October 3, 2016 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 §
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