Claudia Juana Madrigal v. Carolyn W. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CLAUDIA JUANA MADRIGAL,

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Plaintiff,
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v.
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NANCY A. BERRYHILL, Acting
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Commissioner of Social Security,
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Defendant.
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____________________________________)

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judgment are denied, and this matter is remanded for further
administrative action consistent with this Opinion.

PROCEEDINGS

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AND ORDER OF REMAND

HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary

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MEMORANDUM OPINION

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

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NO. CV 16-8714-E

Plaintiff filed a Complaint on November 22, 2016, seeking review
of the Commissioner’s denial of benefits.

The parties filed a consent

to proceed before a United States Magistrate Judge on January 9, 2017.
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Plaintiff filed a motion for summary judgment on April 28, 2017.

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Defendant filed a motion for summary judgment on May 30, 2017.

The

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Court has taken both motions under submission without oral argument.

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See L.R. 7-15; “Order,” filed November 28, 2016.

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BACKGROUND

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On June 25, 2013, Plaintiff applied for disability insurance
benefits and supplemental security income, alleging disability

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beginning December 22, 2011, when she was injured at work

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(Administrative Record (“A.R.”) 158-72, 190, 256, 444).

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of her injury, Plaintiff was pregnant (A.R. 256).

At the time

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A Workers’ Compensation orthopedist, Dr. Kevin Pelton of

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“Advanced Orthopedics,” treated Plaintiff for radiating pain from

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February of 2012 through at least August of 2014 (A.R. 384-450, 467-

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71, 473-88).

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sprain/strain, and a 4-millimeter disc bulge at L4-L5 and bilateral

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lower extremity radiculitis (A.R. 448, 467).

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pregnant, Dr. Pelton initially treated Plaintiff with only physical

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therapy and topical pain medication (A.R. 448).

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delivered her baby, Dr. Pelton ordered MRI studies but prescribed no

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pain medications because Plaintiff was breast feeding (A.R. 441).

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MRI study of Plaintiff’s lumbar spine from April of 2012 showed a 2-3

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millimeter disc bulge at L4-5 without evidence of stenosis or neural

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foraminal narrowing, and “mild effacement” of the right exiting nerve

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root secondary to a 3-4 millimeter disc bulge at L5-S1 (A.R. 372-73;

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see also A.R. 378-79 (March, 2011 lumbar spine MRI showing bulges);

Dr. Pelton diagnosed a lumbosacral musculoligamentous

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Because Plaintiff was

After Plaintiff

The

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A.R. 374-75 (September, 2010 cervical spine MRI showing a 1-2

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millimeter disc bulge at C5-6 and C6-7 without evidence of stenosis or

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neural foraminal narrowing)).1

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that Plaintiff was “still unable to work,” and Dr. Pelton indicated

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that, if physical therapy did not relieve Plaintiff’s symptoms

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adequately, Plaintiff might require an epidural injection (A.R. 428).

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In August of 2012, Plaintiff was still breast feeding and so was

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restricted to using only Tylenol for her pain (A.R. 423).

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Plaintiff’s next five visits, Dr. Pelton recommended a trial of

In July of 2012, Dr. Pelton stated

During

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acupuncture and a TENS unit for Plaintiff’s pain because Plaintiff’s

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treatment options still were limited due to the breast feeding (A.R.

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404, 408, 411, 414, 417).

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milligrams of Motrin and Soma for muscle spasms (A.R. 398).

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of 2013, Dr. Pelton stated that he was awaiting authorization for a

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consultation with a pain management specialist (A.R. 385).

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2014, Dr. Pelton stated that Plaintiff had not responded to

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conservative treatment so he was “formally requesting” authorization

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for a pain management consultation for consideration of epidural

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injections (A.R. 476).

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management consultation and consideration of lumbar epidural steroid

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injections reportedly was still pending (A.R. 474).

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that Plaintiff should remain off work, with any return to modified

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work occurring as permitted by a Qualified Medical Examiner’s opinion

In April of 2013, Dr. Pelton prescribed 800
In August

In July of

In August of 2014, authorization for a pain

Dr. Pelton opined

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Dr. Pelton noted the following findings on
examinations: (1) spinal tenderness on palpation; (2) limited
range of motion; (3) positive straight leg raising tests for back
pain; and (4) sometimes radiating pain (A.R. 385, 390, 394, 398,
404, 408, 411, 414, 417, 428, 432, 436, 440, 467, 469, 480, 484;
see also R.T. 423 (antalgic gait)).
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(A.R. 477, 482).2

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On June 12, 2015, an Administrative Law Judge (“ALJ”) rejected

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Dr. Pelton’s opinions that Plaintiff was “temporary totally disabled”

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and “must remain off work” (A.R. 26).

The ALJ stated:

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The undersigned finds these conclusions have no probative

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value and rejects them.

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disabled” and “permanent and stationary” are terms of art in

The term “temporarily totally

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workers’ compensation law that are not determinative under

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the different criteria for a finding of disability pursuant

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to the Social Security Act.

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physician the claimant is “temporarily totally disabled” or

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that she must remain off work in the context of a workers’

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compensation case is not relevant with regard to the

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claimant’s applications under the Social Security Act.

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objective clinical and diagnostic evidence used by the

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claimant’s physicians to come to those conclusions have been

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considered.

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determination that the claimant could do work subject to the

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residual functional capacity assessed herein.

Therefore, a conclusion by a

The

This objective evidence is consistent with a

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(A.R. 26).

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Although Plaintiff reportedly saw a Qualified Medical
Examiner (“QME”) on March 11, 2014 (A.R. 480), and Dr. Pelton
reportedly reviewed the QME’s report (A.R. 478), the QME’s report
is not a part of the administrative record. According to Dr.
Pelton, the QME stated that Plaintiff was “permanent and
stationary” and should be afforded future medical care including
pain management and epidural injections (A.R. 478).
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The ALJ adopted a consultative examiner’s opinion that Plaintiff

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retains the residual functional capacity to perform medium work (A.R.

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24-26; see A.R. 459-64).

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concurred with the consultative examiner’s opinion (A.R. 55-69).

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ALJ found that, with this capacity, Plaintiff could return to her past

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relevant work and also that Plaintiff could perform other jobs

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existing in significant numbers (A.R. 27-28 (adopting vocational

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expert testimony at A.R. 47-48)).

Non-examining state agency physicians
The

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On October 7, 2016, the Appeals Council considered additional
medical evidence but denied review (A.R. 1-5; see also A.R. 824-923).

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the

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Administration’s decision to determine if: (1) the Administration’s

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findings are supported by substantial evidence; and (2) the

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Administration used correct legal standards.

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Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

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499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner,

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682 F.3d 1157, 1161 (9th Cir. 2012).

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relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.”

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(1971) (citation and quotations omitted); see also Widmark v.

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Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

See Carmickle v.

Substantial evidence is “such

Richardson v. Perales, 402 U.S. 389, 401

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If the evidence can support either outcome, the court may

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not substitute its judgment for that of the ALJ.
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But the

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Commissioner’s decision cannot be affirmed simply by

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isolating a specific quantum of supporting evidence.

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Rather, a court must consider the record as a whole,

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weighing both evidence that supports and evidence that

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detracts from the [administrative] conclusion.

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and

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quotations omitted).

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Where, as here, the Appeals Council considered additional

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evidence but denied review, the additional evidence becomes part of

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the record for purposes of the Court’s analysis. See Brewes v.

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Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers

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new evidence in deciding whether to review a decision of the ALJ, that

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evidence becomes part of the administrative record, which the district

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court must consider when reviewing the Commissioner’s final decision

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for substantial evidence”; expressly adopting Ramirez v. Shalala, 8

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F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d

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1228, 1231 (2011) (courts may consider evidence presented for the

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first time to the Appeals Council “to determine whether, in light of

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the record as a whole, the ALJ’s decision was supported by substantial

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evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953,

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957 n.7 (9th Cir. 1993) (“the Appeals Council considered this

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information and it became part of the record we are required to review

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as a whole”).

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DISCUSSION

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I.

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The ALJ Failed to State Legally Sufficient Reasons for Rejecting
Dr. Pelton’s Opinions.

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The ALJ must “consider” and “evaluate” every medical opinion of

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record.

See 20 C.F.R. § 404.1527(b) and (c) (applying to claims filed

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before March 27, 2017).

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“cannot reject [medical] evidence for no reason or the wrong reason.”

In this consideration and evaluation, an ALJ

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Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981).

Nor can the

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ALJ make his or her own lay medical assessment.

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Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (a hearing examiner

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not qualified as a medical expert should not make his or her own

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exploration and assessment of a claimant’s medical condition)

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(citation omitted).

See Day v.

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Under the law of the Ninth Circuit, the opinions of treating

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physicians command particular respect.

“As a general rule, more

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weight should be given to the opinion of the treating source than to

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the opinion of doctors who do not treat the claimant.”

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Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citations omitted).

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treating physician’s conclusions “must be given substantial weight.”

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Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v.

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Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must give

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sufficient weight to the subjective aspects of a doctor’s opinion.

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. . .

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physician”) (citation omitted); see also Orn v. Astrue, 495 F.3d 625,

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631-33 (9th Cir. 2007) (discussing deference owed to treating

Lester v.
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This is especially true when the opinion is that of a treating

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physicians’ opinions).

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are contradicted,3 “if the ALJ wishes to disregard the opinion[s] of

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the treating physician he . . . must make findings setting forth

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specific, legitimate reasons for doing so that are based on

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substantial evidence in the record.”

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647 (9th Cir. 1987) (citation, quotations and brackets omitted); see

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Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ may disregard the

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treating physician’s opinion, but only by setting forth specific,

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legitimate reasons for doing so, and this decision must itself be

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Even where the treating physician’s opinions

Winans v. Bowen, 853 F.2d 643,

based on substantial evidence”) (citation and quotations omitted).

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Here, the ALJ apparently discounted Dr. Pelton’s opinions because

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of the Workers’ Compensation context in which Dr. Pelton rendered

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those opinions.

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obtained “does not provide a legitimate basis for rejecting it.”

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Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998); see Nash v.

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Colvin, 2016 WL 67677, at *7 (E.D. Cal. Jan. 5, 2016) (“the ALJ may

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not disregard a physician’s medical opinion simply because it was

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initially elicited in a state workers’ compensation proceeding . . .”)

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(citations and quotations omitted); Casillas v. Colvin, 2015 WL

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6553414, at *3 (C.D. Cal. Oct. 29, 2015) (same); Franco v. Astrue,

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2012 WL 3638609, at *10 (C.D. Cal. Aug. 23, 2012) (same); Booth v.

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Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. Cal. 2002) (same).

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finding Dr. Pelton’s opinions “not relevant,” the ALJ erred.

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see also Brammer v. Colvin, 2015 WL 9484450, at *5 (C.D. Cal. Dec. 29,

However, the purpose for which a medical opinion is

By
See id.;

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Rejection of an uncontradicted opinion of a treating
physician requires a statement of “clear and convincing” reasons.
Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v.
Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984).
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2015) (“Although workers’ compensation disability ratings are not

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controlling in Social Security cases, an ALJ must nevertheless

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evaluate medical opinions stated in workers’ compensation terminology

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just as he would evaluate any other medical opinion.”).

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The ALJ’s preference for the opinions of the consultative

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examiner and the state agency physicians cannot constitute a

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“specific, legitimate” reason for rejecting the opinions of Dr.

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Pelton.

The contradiction of a treating physician’s opinion by

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another physician’s opinion triggers rather than satisfies the

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requirement of stating “specific, legitimate reasons.”

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Valentine v. Commissioner, 574 F.3d 685, 692 (9th Cir. 2007); Orn v.

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Astrue, 495 F.3d at 631-33; Lester v. Chater, 81 F.3d at 830-31.

See, e.g.,

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Defendant argues that the “objective clinical and diagnostic

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evidence on examination” was consistent with the residual functional

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capacity the consultative examiner assessed and the ALJ adopted.

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Deft’s Motion, p. 1.

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not review any of the medical records (A.R. 459).

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state agency physicians appear to have reviewed a few medical records,

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(A.R. 57, 64, 67), but apparently reviewed none of Dr. Pelton’s

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records.

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reviewed and indicating that “Advanced Orthopedics” records had been

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requested).

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“objective clinical and diagnostic evidence on examination” supports

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the ALJ’s residual functional capacity assessment.

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record was in a position to opine whether the “objective clinical and

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diagnostic evidence on examination” from Dr. Pelton was consistent

See

However, the consultative examiner evidently did
The non-examining

See A.R. 51-53, 61-63 (summarizing evidence apparently

It is thus uncertain on the current record whether the

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No physician of

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with the assessment.

Neither the ALJ nor this Court has the requisite

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medical expertise so to opine.

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Defendant also argues that the ALJ discounted Dr. Pelton’s

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opinions because Dr. Pelton assertedly prescribed only conservative

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treatment.

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ALJ’s decision referencing Dr. Pelton, the ALJ did not mention

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conservative treatment as a reason to discount Dr. Pelton’s opinions.

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See A.R. 26.

See Deft’s Motion, p. 2.

In the only paragraph of the

The Court cannot affirm the ALJ’s decision on a ground

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the ALJ did not specifically invoke.

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See Pinto v. Massanari, 249 F.3d

840, 847 (9th Cir. 2001).

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The ALJ did cite “routine and conservative” treatment as a reason

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to discount Plaintiff’s credibility (A.R. 25-26).4

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ALJ also may have purported to rely on “conservative” treatment to

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reject Dr. Pelton’s opinions, such reliance would not be legitimate

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under the circumstances of Plaintiff’s treatment history.

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indicated above, throughout much of Plaintiff’s treatment with Dr.

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Pelton, Plaintiff was pregnant or breast feeding.

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precluded the prescribing of narcotic pain medication.

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Pelton repeatedly requested authorization for more aggressive pain

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management, including epidural injections, because Plaintiff had not

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responded well to conservative treatment.

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Circuit recently has stated that “the failure of a treating physician

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to recommend a more aggressive course of treatment, absent more, is

To the extent the

As

These circumstances
Later, Dr.

In any event, the Ninth

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Similarly, the ALJ cited “the lack of aggressive
treatment” as assertedly supporting the opinions of the nontreating physicians (A.R. 26).
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not a legitimate reason to discount the physician’s subsequent medical

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opinion about the extent of disability.”

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F.3d ___, 2017 WL 2925434, at *8 (9th Cir. 2017).

Trevizo v. Berryhill, ___

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For all these reasons, the ALJ erred by rejecting the opinions of

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the Dr. Pelton without stating legally sufficient reasons for doing

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so.

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II.

The Court is Unable to Conclude that the ALJ’s Error was
Harmless; Remand is Appropriate.

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An error “is harmless where it is inconsequential to the ultimate

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non-disability determination.” Molina v. Astrue, 674 F.3d 1104, 1115

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(9th Cir. 2012) (citations and quotations omitted); see McLeod v.

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Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error not harmless where

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“the reviewing court can determine from the ‘circumstances of the

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case’ that further administrative review is needed to determine

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whether there was prejudice from the error”).

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deem the error in the present case to have been harmless.

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v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (even though the

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district court had stated “persuasive reasons” why the ALJ’s failure

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to mention the treating physician’s opinion was harmless, the Ninth

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Circuit remanded because “we cannot ‘confidently conclude’ that the

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error was harmless”); Treichler v. Commissioner, 775 F.3d 1090, 1105

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(9th Cir. 2014) (“Where, as in this case, an ALJ makes a legal error,

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but the record is uncertain and ambiguous, the proper approach is to

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remand the case to the agency”).

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source has considered Dr. Pelton’s findings and opinions that

The Court is unable to
See Marsh

It appears that no competent medical

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Plaintiff could not return to work or could do so only as permitted by

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the QME’s report (which is not a part of the record) (A.R. 477, 482).

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Remand is appropriate because the circumstances of this case

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suggest that further administrative review could remedy the error

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discussed herein.

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v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative

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determination, the proper course is remand for additional agency

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investigation or explanation, except in rare circumstances); Dominguez

See McLeod v. Astrue, 640 F.3d at 888; see also INS

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v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district

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court concludes that further administrative proceedings would serve no

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useful purpose, it may not remand with a direction to provide

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benefits”); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand

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for further administrative proceedings is the proper remedy “in all

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but the rarest cases”); Garrison v. Colvin, 759 F.3d 995, 1020 (9th

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Cir. 2014) (court will credit-as-true medical opinion evidence only

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where, inter alia, “the record has been fully developed and further

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administrative proceedings would serve no useful purpose”); Harman v.

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Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038

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(2000) (remand for further proceedings rather than for the immediate

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payment of benefits is appropriate where there are “sufficient

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unanswered questions in the record”).

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unanswered questions in the present record.

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F.3d at 1173 (remanding for further administrative proceedings to

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allow the ALJ to “comment on” the treating physician’s opinion).

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Moreover, it is not clear that the ALJ would be required to find

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Plaintiff disabled for the entire claimed period of disability even if

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Dr. Pelton’s opinions were fully credited.
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There remain significant
See Marsh v. Colvin, 792

See Luna v. Astrue, 623

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F.3d 1032, 1035 (9th Cir. 2010).

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CONCLUSION

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For all of the foregoing reasons,5 Plaintiff’s and Defendant’s

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motions for summary judgment are denied and this matter is remanded

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for further administrative action consistent with this Opinion.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: July 21, 2017.

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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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The Court has not reached any other issue raised by
Plaintiff except insofar as to determine that reversal with a
directive for the immediate payment of benefits would not be an
appropriate remedy at this time.
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