Cortez v. Commissioner of Social Security Administration

Filing 22

ORDER - IT IS THEREFORE ORDERED that the final decision of the Commissioner is vacated and this matter is remanded to the Commissioner for further proceedings consistent with this Order. The Clerk of the Court shall enter judgment accordingly. (See document for complete details). Signed by Magistrate Judge Deborah M Fine on 9/18/18. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lily Cortez,

No. CV-17-8172-PCT-DMF
Plaintiff,

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v.

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Commissioner of Social Security
Administration,

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ORDER

Defendant.

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Plaintiff Lily Cortez appeals from the denial of her application for benefits from

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the Social Security Administration. This Court has jurisdiction pursuant to 42 U.S.C. §

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405(g) and, with the parties’ consent to Magistrate Judge jurisdiction, pursuant to 28

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U.S.C. § 636(c). As detailed below, the Court concludes that the ALJ’s opinion contains

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non-harmless legal error and remands for further proceedings.
Standard of Review

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This court must affirm the ALJ’s findings if they are supported by substantial

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evidence and are free from reversible error. Marcia v. Sullivan, 900 F.2d 172, 174 (9th

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Cir. 1990).

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preponderance; it is “such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). In

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determining whether substantial evidence supports the ALJ’s decision, the court

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considers the record as a whole, weighing both the evidence that supports and that which

Substantial evidence is more than a mere scintilla, but less than a

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detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.

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1998). If there is sufficient evidence to support the ALJ’s determination, the Court

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cannot substitute its own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th

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Cir. 1990).

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considered in its entirety substantially supports it and the decision is free from reversible

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error. 42 U.S.C. § 405(g); Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989).

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Thus, the Court must affirm the ALJ’s decision where the evidence

Analysis

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Cortez has a high school education and was 51 years old at her amended onset

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date. (Tr. 14, 60) One of Cortez’s arguments is that the ALJ did not properly evaluate

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the medical opinions from her treating physicians. (Doc. 16 at 11-19) The Court agrees.

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If a treating physician’s opinion “is contradicted by another doctor’s opinion, an

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ALJ may only reject it by providing specific and legitimate reasons that are supported by

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substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). “The

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ALJ can meet this burden by setting out a detailed and thorough summary of the facts and

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conflicting clinical evidence, stating his interpretation thereof, and making findings.”

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Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799

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F.2d 1403, 1408 (9th Cir. 1986)). See also Revels v. Berryhill, 874 F.3d 648, 654–55 (9th

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Cir. 2017).

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In the opinion, the ALJ described some of the limitations detailed by one of
Cortez’s treating providers, Dr. Brownsberger, and then stated the following:
The undersigned assigns this opinion little weight because it is inconsistent
with the medical evidence. The evidence shows that the claimant has
multiple impairments including degenerative disc disease and ambulated
slowly (Exhibits 4F; 6F; 38F). In January 2015, treatment records indicate
the claimant’s epidural injections provided five to six months of relief
(Exhibit 11F/1). She also alleged hip pain and was diagnosed with
trochanter bursitis (Exhibit 39F/53). She underwent his bursectomies and
recovered well (Exhibits 20F/3, 19, 23; 32F/14; 42F/3). In October 2015,
the claimant’s treating provider stated the claimant’s bursitis improved
(Exhibit 23F/1).

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(Tr. 26) The opinion then restated these same six sentences. (Tr. 26-27) The subsequent

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two paragraphs of the opinion follow the same template: a description of limitations

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outlined by Cortez’s treating physicians, Dr. Ho and Dr. Randazzo, followed by these

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same six sentences.1 (Tr. 27)

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Even if repeating the same sequence of sentences could ever satisfy the ALJ’s

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obligation to “provid[e] specific and legitimate reasons that are supported by substantial

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evidence,” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005), this attempt is

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insufficient.

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First, the ALJ acknowledges Cortez’s “multiple impairments.” This is consistent

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with the treating physicians’ statements. Then, the opinion states that her “January

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2015[] treatment records indicate the claimant’s epidural injections provided five to six

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months of relief (Exhibit 11F/1).” The Court notes that this citation is to a medical

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record where Cortez reported that an injection had provided relief three years earlier.

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Moreover, the record shows that Cortez received epidural injections on March 20, 2105,

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and then experienced such emergent pain that she presented to the emergency department

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on April 5, 2015. (Tr. 1074, 1948, 1962-63) This kind of cherry-picking in the record is

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impermissible. Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014).

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The next sentence—that Cortez “alleged hip pain and was diagnosed with

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trochanter bursitis”—is again consistent with the opinions the ALJ was attempting to

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discount. The final two sentences state that Cortez had surgeries, recovered well, and

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implied that her treating provider subsequently stated in October 2015 that her bursitis

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had improved. First, the Court notes that the cited record was from October 2014,

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predated her surgeries, and stated in relevant part:

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We last saw her in the clinic at the end of August with complaints of
worsening low back pain. I have been treating Lily also for bilateral
trochanteric bursitis, and she responded well from that standpoint. She has
had worsening pain in her low back though, also with bilateral lower
extremity radiculopathy, left greater than right, in predominately an L4
distribution. She feels that her leg symptoms have improved somewhat,
however, her back continues to worsen.

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Two paragraphs later, the opinion details the limitations of the State agency
consultants, gives those opinions significant weight, and then restates the last five of
those six sentences. (Tr. 28)
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(Tr. 495) In other words, this medical record indicates that Cortez’s bursitis responded

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well to treatment even as her lower back pain increased. This is, again, impermissible

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cherry-picking.

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The opinion does not provide any other explanations for discounting Cortez’s

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treating physicians. As detailed above, the Court concludes that these few, repeated

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sentences do not constitute specific and legitimate reasons supported by substantial

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evidence such that this Court can uphold the ALJ’s rejection of Cortez’s treating

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physicians’ opinions.

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Conclusion

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Because the Court concludes that the ALJ’s opinion cannot stand, Cortez’s other

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arguments will not be addressed. Although Cortez seeks a remand for benefits, the Court

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concludes that the best course is to remand for further proceedings. Vasquez v. Astrue,

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572 F.3d 586, 596 (9th Cir. 2009).

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IT IS THEREFORE ORDERED that the final decision of the Commissioner is

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vacated and this matter is remanded to the Commissioner for further proceedings

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consistent with this Order. The Clerk of the Court shall enter judgment accordingly.

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Dated this 18th day of September, 2018.

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