Randy James Perez v. Carolyn W Colvin

Filing 27

MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. the Agency's decision is reversed and the action is remanded for further consideration consistent with this Memorandum Opinion and Order. (See document for further details.) (sbou)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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RANDY JAMES PEREZ,

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Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.

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Case No. CV 15-9279-PJW
MEMORANDUM OPINION AND ORDER

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I.

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INTRODUCTION

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Plaintiff appeals a decision by Defendant Social Security

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Administration (“the Agency”), denying his claim for Supplemental

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Security Income (“SSI”).

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(“ALJ”) erred when he: (1) rejected the treating doctor’s opinion;

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(2) determined that Plaintiff and his mother were not credible; and

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(3) found that Plaintiff could work.

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the ALJ’s decision is reversed and the case is remanded to the Agency

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for further proceedings consistent with this opinion.

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He claims that the Administrative Law Judge

For the reasons explained below,

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II.

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SUMMARY OF PROCEEDINGS

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In August 2011, Plaintiff applied for SSI, alleging that he had

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been unable to work since December 31, 2002, due to chronic lower back

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pain, Hepatitis C, hypertension, and insomnia.

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(“AR”) 226-34, 257.)

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on reconsideration.

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granted a hearing before an ALJ.

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he appeared with counsel and testified at the hearing.

The Agency denied the applications initially and
(AR 87, 97.)

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69.)

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application for benefits.

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(Administrative Record

Plaintiff then requested and was
(AR 130-31.)

On February 27, 2013,
(AR 48-50, 52-

On March 19, 2013, the ALJ issued a decision denying his
(AR 98-112.)

Plaintiff appealed the ALJ’s decision to the Appeals Council,

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which vacated the decision and remanded the case to the ALJ to further

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evaluate Plaintiff’s mental impairment, reconsider the testimony of

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Plaintiff’s mother, further evaluate the doctors’ opinions after

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updating the record, develop the record regarding Plaintiff’s past

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work, and, if warranted, obtain testimony from a vocational expert.

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(AR 114-16.)

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On March 25, 2015, Plaintiff appeared with counsel at a second

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hearing before a different ALJ.

(AR 31-42.)

On June 26, 2015, the

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ALJ issued a decision denying Plaintiff’s application for benefits.

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(AR 12-28.)

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review.

Plaintiff appealed to the Appeals Council, which denied

(AR 1-6.)

This action followed.

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III.

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ANALYSIS

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A.

The Residual Functional Capacity Determination
The ALJ found that Plaintiff had the residual functional capacity

to perform light work if it involved only occasional bending and
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stooping.

(AR 18.)

Plaintiff objects to this finding.

He contends

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that, in order to reach this conclusion, the ALJ improperly rejected

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the opinion of one of Plaintiff’s treating doctors and discounted

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Plaintiff’s and his mother’s testimony without cause.

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9-22, 37-43.)

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to the Agency for further consideration.

(Joint Stip. at

For the following reasons, the Court remands this issue

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1.

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In January 2013, Plaintiff’s treating doctor, Dr. William

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The Treating Doctor’s Opinion

Edelstein, diagnosed Plaintiff with chronic lower back pain and

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concluded that he could occasionally lift, carry, or pull less than

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ten pounds; stand or walk for a total of less than two hours in an

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eight-hour day; and sit continuously for less than six hours.

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380.)

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that he would miss 60 to 120 hours of work per month.

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According to Dr. Edelstein, Plaintiff’s condition had persisted for 13

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years.

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(AR

He also opined that Plaintiff could not reach repeatedly and
(AR 380.)

(AR 380.)

Had the ALJ accepted Dr. Edelstein’s opinion, he would have had

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to conclude that Plaintiff was not even capable of performing full-

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time sedentary work.

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because: (1) it was not supported by objective medical evidence; and

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(2) it was undermined by the opinions of treating doctor John

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Landsberg, consultative examiner Ursula Taylor, and two reviewing

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doctors.

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perform light work.

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discounting Dr. Edelstein’s opinion.

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(AR 21.)

But the ALJ rejected Dr. Edelstein’s opinion

Ultimately, the ALJ concluded that Plaintiff could
Plaintiff argues that the ALJ erred in

It is the province of the ALJ to resolve conflicts in the medical

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evidence.

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There are three types of doctors that supply that evidence: treating

Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

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doctors, examining doctors, and reviewing doctors.

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equal, treating doctors’ opinions are entitled to the most weight

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because they are hired to cure and have more opportunity to know and

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observe the patient.

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list, followed by reviewing doctors.

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821, 830-31 (9th Cir. 1995).

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merely accept the opinion of any doctor and, where an opinion is

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contradicted, may reject it for specific and legitimate reasons that

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are supported by substantial evidence in the record.

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Id. at 1041.

All things being

Examining doctors are next on the
See Lester v. Chater, 81 F.3d

ALJs, however, are not required to

Id. at 830.

In rejecting Dr. Edelstein’s opinion, the ALJ noted that, though

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a treating doctor’s opinion is normally entitled to significant

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weight, that rule is only applicable if the opinion is supported by

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objective medical evidence.

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that, “such is not the case regarding the assessment of Dr. Edelstein

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of extreme physical limitations of 13 years duration (Exhibit 8F).”

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(AR 21.)

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to support such a restrictive residual functional capacity . . . .”

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(AR 21.)

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(AR 21.)

He then went on to explain

In the ALJ’s view, there was “no objective medical evidence

Plaintiff complains that the ALJ’s finding that Dr. Edelstein’s

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opinion was not supported by the objective medical evidence was too

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general to be upheld on appeal.

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disagrees in part.

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dating back to 2000 to support Dr. Edelstein’s opinion that

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Plaintiff’s condition persisted for 13 years.

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records from the Santa Barbara County Health Department, where Dr.

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Edelstein worked and where he treated Plaintiff, only go back to 2010.

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(AR 337-41, 377-429.)

The Court agrees in part and

Clearly there is no objective medical evidence

In fact, the medical

Thus, the ALJ’s finding that there was no

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objective medical evidence to support Dr. Edelstein’s 2013 opinion

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that Plaintiff’s condition had persisted for 13 years is affirmed.

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The ALJ’s companion finding that there was no objective medical

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evidence to support Dr. Edelstein’s restrictive residual functional

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capacity finding is not.

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record that supports Dr. Edelstein’s view, for example, his positive

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findings in straight leg testing, and some that undermines it.

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ALJ was tasked with sorting through the evidence and explaining which

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evidence undermined Dr. Edelstein’s opinion and which evidence

There is some objective evidence in the

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supported it.

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v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“Merely to state that a

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medical opinion is not supported by enough objective findings ‘does

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not achieve the level of specificity our prior cases have required,

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even when the objective factors are listed seriatim.’”) (quoting

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Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988)).

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His failure to do so amounts to error.

The

See Rodriguez

The ALJ also questioned Dr. Edelstein’s opinion because it was

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inconsistent with the opinions of treating doctor Landsberg (who took

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over Plaintiff’s treatment in February 2013), examining doctor Ursula

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Taylor, and the reviewing doctors.

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valid reason for questioning a treating doctor’s opinion.

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F.3d at 1043 (upholding ALJ’s rejection of treating doctor’s opinion

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based in part on the fact that it was contradicted by opinions of

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nontreating doctors).

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the five doctors involved in this case, only one, Dr. Edelstein,

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concluded that Plaintiff was so severely disabled that his physical

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limitations precluded him from performing even sedentary work.

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380.)

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least 20 pounds, walk for six hours in an eight-hour day, and sit for

Generally speaking, this is a
Andrews, 53

And it is supported in part by the record.

Of

(AR

Three of the other four opined that Plaintiff could lift at

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at least six hours, which translates into being able to perform light

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work.

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Plaintiff’s residual functional capacity.

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prescribing Plaintiff the narcotic Norco soon after he started

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treating Plaintiff, which could be interpreted as an indication of his

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view on the severity of Plaintiff’s back pain.

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(AR 83-84, 93, 360.)

Dr. Landsberg did not offer an opinion on
He did, however, stop

The ALJ also explained that he relied on these other doctors

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based on the “length, nature and extent of the treating relationship,

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supportability with medical signs and laboratory findings, consistency

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with the record, and area of specialization.”

(AR 21.)

The ALJ

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failed, however, to explain what he meant by this.

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Edelstein clearly had the longest relationship with Plaintiff.

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treated Plaintiff from September 2010 to February 2013.

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the examining doctor, only saw him once and that was for an

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examination, not treatment.

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all.

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months.

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opinion based on the length and nature of the treatment, the ALJ erred

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here, too, because Dr. Edelstein treated Plaintiff for the longest

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and, therefore, that would have been a reason to rely on his opinion.

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The ALJ also questioned Dr. Edelstein’s opinion because the

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minimal objective medical evidence there was--an “MRI indicating

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minimal to mild degenerative changes to the lumbosacral spine”--did

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not support his view that Plaintiff was disabled.

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does not find this reason persuasive.

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these findings establish that Plaintiff’s back condition is not

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painful or debilitating.

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ALJ’s alone.

For example, Dr.
He

Dr. Taylor,

The reviewing doctors never saw him at

Dr. Landsberg’s treatment notes cover a period of about six
Thus, to the extent that the ALJ discounted Dr. Edelstein’s

(AR 21.)

The Court

None of the doctors opined that

It appears that this conclusion was the

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Though the Court considers this a close call, it concludes that

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remand is warranted for the ALJ to take another look at this issue.

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In doing so, he should explain what medical evidence undermines Dr.

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Edelstein’s opinion and what the basis for that view is.

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if the apparently unremarkable MRI findings establish that Plaintiff’s

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back condition is not as severe as Plaintiff and Dr. Edelstein claim,

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then the ALJ should point to evidence in the record that substantiates

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that finding.

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medical records and consider them in determining whether Plaintiff is

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For example,

The ALJ should also obtain Plaintiff’s most recent

disabled.

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2.

The ALJ’s Credibility Determination

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The ALJ found that Plaintiff was not credible.

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that the ALJ erred in doing so.

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Plaintiff argues

finding is remanded for further consideration.

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For the following reasons, this

ALJs are tasked with judging a claimant’s credibility.

Andrews,

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53 F.3d at 1039.

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techniques.

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Where there is no evidence of malingering, however, they can only

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reject a claimant’s testimony for specific, clear, and convincing

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reasons that are supported by substantial evidence in the record.

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Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014).

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In doing so, they can rely on ordinary credibility

Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).

Plaintiff suffers from sciatica and testified that he has back

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pain every day.

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hours at a time and can walk for only about five minutes before he has

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to rest.

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when his back goes out once or twice a month, which causes pain that

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lasts up to two weeks.

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go out when he is washing dishes or reaching to put a dish into the

(AR 35.)

(AR 40.)

He claims that he can sit for only two

He alleges that he uses a cane and a back brace

(AR 41.)

According to Plaintiff, his back can

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cupboard.

(AR 41.)

As a result of his ailments and his insomnia, he

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only sleeps three to four hours a night.

(AR 42.)

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The ALJ found that Plaintiff’s sciatica could reasonably be

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expected to cause his alleged symptoms but that his testimony that his

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symptoms were debilitating was not entirely credible because: (1) his

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ability to perform daily activities was inconsistent with his alleged

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limitations; (2) the objective medical evidence did not support his

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alleged degree of back pain; (3) he did not comply with treatment; and

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(4) his treatment was conservative.

(AR 20, 21.)

These are valid

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reasons for questioning a claimant’s testimony.

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495 F.3d 625, 639 (9th Cir. 2007) (holding ALJ can consider claimant’s

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ability to perform daily activities in assessing credibility); Rollins

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v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (noting ALJ can

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consider objective medical evidence in determining credibility of

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claimant); Orn, 495 F.3d at 638 (explaining ALJ may consider

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claimant’s failure to follow prescribed course of treatment in

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evaluating testimony about severity of pain); Meanel v. Apfel, 172

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F.3d 1111, 1114 (9th Cir. 1999) (holding inconsistency between

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allegations of severe pain and conservative treatment was proper basis

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for discounting credibility).

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them are supported by substantial evidence in the record.

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See Orn v. Astrue,

As explained below, however, not all of

The ALJ questioned Plaintiff’s claim that he could only walk for

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five minutes because his purported daily activities--including

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cleaning and vacuuming--“required more than [five] minutes of

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walking.”

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finding here.

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intervals over the course of a day, particularly, where, as here, he

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was not working and was spending his days at home.

(AR 20-21.)

The Court does not agree with the ALJ’s

Plaintiff could have performed these chores in short

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The government points out that Plaintiff told Dr. Edelstein that

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he was biking and walking seven days a week for exercise.

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Clearly, this level of daily activity is inconsistent with Plaintiff’s

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testimony that he suffered from debilitating pain that rendered him

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incapable of working.

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Plaintiff’s credibility and, as such, the Court is not at liberty to

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do so here.

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(“[W]e cannot affirm the decision of an agency on a ground that the

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agency did not invoke in making its decision.”) (citation omitted).

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(AR 389.)

But the ALJ did not rely on this when analyzing

See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001)

The ALJ relied on the absence of objective medical evidence

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supporting Plaintiff’s alleged pain to find that Plaintiff was not

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credible.

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specify what evidence was missing and how the lack of it undermined

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Plaintiff’s testimony.

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benign findings in the MRI, the Court is not convinced, absent expert

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testimony, that that establishes that Plaintiff was not experiencing

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pain and limitation.

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objective evidence that was there, for example, the positive straight

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leg raising test results from Dr. Edelstein, did not support

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Plaintiff’s testimony.

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The problem with this finding is that the ALJ failed to

To the extent that he was referring to the

The ALJ also failed to explain how the other

The ALJ also questioned Plaintiff’s sincerity because he failed

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to follow medical advice.

There is evidence in the record to support

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this finding.

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to listen when he counseled him to start using different sleep

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medication.

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Plaintiff’s pain and suffering was not as severe as he claimed.

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Plaintiff’s resistance here involved his insomnia medication, not his

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pain medication.

Dr. Landsberg noted that Plaintiff essentially refused

(AR 422, 426-27.)

This could be construed as a sign that

And, though the insomnia and the pain from the
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But

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sciatica may have been related, the Court cannot conclude that

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Plaintiff’s failure to take his insomnia medication proves that his

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statements about his back pain are exaggerated.

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The ALJ pointed to the fact that Plaintiff received conservative

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treatment for what Plaintiff claimed was a debilitating back ailment.

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The Court sides with the ALJ here.

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sparse.

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Barbara Health Care Center from 2010 to 2013 in which Plaintiff went

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to see Dr. Edelstein and complained about a bad back, insomnia, high

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blood pressure, and anxiety and Dr. Edelstein prescribed medications

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to treat his conditions.

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the fact that Plaintiff claims that he has been disabled since 2002.

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There were no procedures performed on his back.

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any injections.

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reported to Dr. Edelstein on an infrequent basis and received

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medication.

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Plaintiff’s back pain was a narcotic, Norco, there is no indication in

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Dr. Edelstein’s records that anything more was ever done to treat

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Plaintiff’s condition.

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Plaintiff’s treatment, he stopped prescribing Norco.

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The medical record in this case is

It consists of a handful of treatment notes from Santa

There are no records before 2010, despite

He did not receive

He did not receive any physical therapy.

He simply

Though the medication Dr. Edelstein prescribed for

Further, soon after Dr. Landsberg took over

Plaintiff purportedly used a back brace and a cane to treat his

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back pain.

But there is no evidence to indicate that either were

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prescribed and, even assuming that they were, the Court would

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characterize them as conservative treatment, also.1

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It appears that Plaintiff was referred to a pain specialist by
Dr. Landsberg (AR 418) but there are no records from the pain
specialist.
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In the end, some of the reasons cited by the ALJ are supported by

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the record and some are not.

Because the Court is not convinced that

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the reasons that stand are enough to reject Plaintiff’s testimony, the

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issue is remanded to the ALJ for further consideration.

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v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008)

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(holding error is harmless only if substantial evidence remains to

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support the ALJ’s credibility finding).2

See Carmickle

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3.

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Plaintiff’s mother submitted a written report, explaining what

Lay Witness Testimony

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she perceived were Plaintiff’s limitations.

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discussed her report but failed to explain whether he was accepting it

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or rejecting it.

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rejected parts of her “testimony” because his findings relating to

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what Plaintiff could do are inconsistent with what Plaintiff’s mother

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reported that he could do.

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properly address the mother’s testimony but argues that, because her

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testimony was so closely aligned with Plaintiff’s, the ALJ’s reasons

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for rejecting Plaintiff’s testimony can and should be applied to the

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mother’s.

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(AR 275-78.)

The ALJ

It seems fair to conclude, however, that the ALJ

The Agency concedes that the ALJ failed to

The Court has remanded the issue of Plaintiff’s credibility to

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the ALJ.

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ALJ’s rejection of the mother’s testimony for the same reasons it is

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upholding the rejection of Plaintiff’s testimony necessarily fails.

Thus, the Agency’s argument that the Court should uphold the

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The ALJ also seems to conclude that Plaintiff’s mother’s
testimony undermined Plaintiff’s testimony. (AR 21.) The Court does
not see much difference between what Plaintiff reported and what his
mother reported. (AR 263-70, 275-82.) In fact, their written
reports, which were signed on the same day, closely mirror each other.
(AR 263-70, 275-82.)
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On remand, the ALJ should consider the mother’s input as well and

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explain what weight, if any, he gives it and why.

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Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (“[L]ay witness testimony

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as to a claimant’s symptoms . . . is competent evidence” which the

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Secretary must take into account.) (emphasis in original) (citations

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omitted).

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B.

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See Nguyen v.

Plaintiff’s Past Relevant Work
Plaintiff contends that the ALJ erred in concluding that he could

perform his past work as a medical file clerk because the job is

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defined as light work and Plaintiff is only capable of performing

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sedentary work.

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above, the ALJ will have to take another look at Plaintiff’s residual

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functional capacity and then determine whether he can perform his past

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work.

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C.

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On remand, after addressing the issues outlined

The ALJ’s Alternative Finding at Step Five
The ALJ also made an alternative finding that Plaintiff could

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perform other jobs existing in the national economy, such as cashier

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II and marker (retail).

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these jobs involve frequent reaching, handling, and fingering and,

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therefore, are beyond his ability to do sedentary work.

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at 51-52.)

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(AR 22-23.)

Plaintiff argues that both of

(Joint Stip.

The Court does not find Plaintiff’s argument persuasive.

The ALJ

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did not limit Plaintiff to frequent reaching, handling, and fingering,

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nor did he limit him to sedentary work.

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makes a different residual functional capacity determination on

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remand, he will have to to reconsider Step Four and, if warranted,

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Step Five, as well.

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That being said, if the ALJ

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IV.

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CONCLUSION

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For the reasons set forth above, the Agency’s decision is

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reversed and the action is remanded for further consideration

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consistent with this Memorandum Opinion and Order.3

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IT IS SO ORDERED.

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DATED: February 8, 2017.

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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

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Plaintiff has requested that the case be remanded for an award
of benefits. (Joint Stip. at 53.) The Court recognizes that it has
the authority to do so but finds that such relief is not warranted
here. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015), as
amended (Feb. 5, 2016) (“Unless the district court concludes that
further administrative proceedings would serve no useful purpose, it
may not remand with a direction to provide benefits.”). Plaintiff
purports to have suffered from a debilitating back condition for more
than 13 years and yet submits only a handful of medical records, which
consists of treatment notes from to 2010-2013. He alleged in a
written report in September 2011 and in his testimony in February 2013
that he is practically incapacitated, being barely capable of sitting
for more than two hours and claimed to spend his days doing very
little. (AR 263-70.) Yet, he told his doctor in October 2012 that he
was exercising seven days a week, riding a bike and walking. (AR
389.) In the end, the Court concludes that the medical records
clearly do not support Plaintiff’s claim that he has been disabled
since 2002. The only issue for remand is whether the few records that
are there from 2010 forward are enough to support a claim for
disability for some period. Further administrative proceedings are
necessary before that question can be answered.
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