Mark Antony Rodriguez v. Michael J. Astrue

Filing 16

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARK ANTONY
RODRIGUEZ,
Plaintiff,

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v.

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MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
_________________________
I.

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Complaint seeking review of the Commissioner of Social Security’s denial of
plaintiff’s applications for benefits. The parties have consented to proceed before
a United States Magistrate Judge.
This matter is before the Court on the parties’ cross motions for summary

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SUMMARY
On February 17, 2011, plaintiff Mark Antony Rodriguez (“plaintiff”) filed a

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) Case No. EDCV 11-274 JC
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) MEMORANDUM OPINION AND
) ORDER OF REMAND
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judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The
Court has taken both motions under submission without oral argument. See Fed.
R. Civ. P. 78; L.R. 7-15; February 24, 2011 Case Management Order ¶ 5.
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Based on the record as a whole and the applicable law, the decision of the

2 Commissioner is REVERSED AND REMANDED for further proceedings
3 consistent with this Memorandum Opinion and Order of Remand.
4 II.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE

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DECISION

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On March 10, 2008, plaintiff filed applications for Supplemental Security

7 Income benefits and Disability Insurance Benefits. (Administrative Record
8 (“AR”) 12, 124, 128, 132, 138). Plaintiff asserted that he became disabled on
9 December 15, 2007, due to shoulder and back pain, liver problems and diabetes.
10 (AR 149). The Administrative Law Judge (“ALJ”) examined the medical record
11 and heard testimony from plaintiff (who was represented by counsel) and a
12 vocational expert on March 18, 2010. (AR 28-68).
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On April 19, 2010, the ALJ determined that plaintiff was not disabled

14 through the date of the decision. (AR 12). Specifically, the ALJ found:
15 (1) plaintiff suffered from the following severe impairments: degenerative disc
16 disease, degenerative joint disease of the right shoulder, diabetes, depression, and
17 recent lupus diagnosis (AR 14); (2) plaintiff’s impairments, considered singly or in
18 combination, did not meet or medically equal one of the listed impairments (AR
19 14-15); (3) plaintiff retained the residual functional capacity to perform sedentary
20 work (20 C.F.R. §§ 404.1567(a), 416.967(a)) with additional limitations1 (AR 15);
21 (4) plaintiff could not perform his past relevant work (AR 21); (5) there are jobs
22 that exist in significant numbers in the national economy that plaintiff could
23 perform, specifically table worker, assembler, and laminator (AR 22); and
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The ALJ determined that plaintiff: (i) could perform a range of sedentary work;
(ii) could lift ten pounds; (iii) could stand/walk two hours in an eight-hour workday; (iv) must be
able to use a cane as needed; (v) could sit six hours in an eight-hour workday; (vi) could not
reach above shoulder level on his right side; (vii) could not climb, but could occasionally
balance, stoop, kneel, crouch and crawl; (viii) would be limited to simple, routine one to two step
instruction tasks; and (ix) could not work around the general public. (AR 15).
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1 (6) plaintiff’s allegations regarding his limitations were not credible to the extent
2 they were inconsistent with the ALJ’s residual functional capacity assessment.
3 (AR 18).
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The Appeals Council denied plaintiff’s application for review. (AR 1).

5 III.

APPLICABLE LEGAL STANDARDS

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A.

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To qualify for disability benefits, a claimant must show that the claimant is

Sequential Evaluation Process

8 unable to engage in any substantial gainful activity by reason of a medically
9 determinable physical or mental impairment which can be expected to result in
10 death or which has lasted or can be expected to last for a continuous period of at
11 least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing
12 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of
13 performing the work claimant previously performed and incapable of performing
14 any other substantial gainful employment that exists in the national economy.
15 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C.
16 § 423(d)(2)(A)).
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In assessing whether a claimant is disabled, an ALJ is to follow a five-step

18 sequential evaluation process:
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(1)

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Is the claimant presently engaged in substantial gainful activity? If
so, the claimant is not disabled. If not, proceed to step two.

(2)

Is the claimant’s alleged impairment sufficiently severe to limit

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claimant’s ability to work? If not, the claimant is not disabled.

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If so, proceed to step three.

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(3)

Does the claimant’s impairment, or combination of

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impairments, meet or equal an impairment listed in 20 C.F.R.

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Part 404, Subpart P, Appendix 1? If so, the claimant is

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disabled. If not, proceed to step four.

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(4)

Does the claimant possess the residual functional capacity to

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perform claimant’s past relevant work? If so, the claimant is

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not disabled. If not, proceed to step five.

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(5)

Does the claimant’s residual functional capacity, when

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considered with the claimant’s age, education, and work

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experience, allow claimant to adjust to other work that exists in

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significant numbers in the national economy? If so, the

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claimant is not disabled. If not, the claimant is disabled.

9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th
10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).
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The claimant has the burden of proof at steps one through four, and the

12 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262
13 F.3d 949, 954 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679
14 (claimant carries initial burden of proving disability).
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B.

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Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of

Standard of Review

17 benefits only if it is not supported by substantial evidence or if it is based on legal
18 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir.
19 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457
20 (9th Cir. 1995)). Substantial evidence is “such relevant evidence as a reasonable
21 mind might accept as adequate to support a conclusion.” Richardson v. Perales,
22 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a
23 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing
24 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).
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To determine whether substantial evidence supports a finding, a court must

26 “‘consider the record as a whole, weighing both evidence that supports and
27 evidence that detracts from the [Commissioner’s] conclusion.’” Aukland v.
28 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d
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1 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming
2 or reversing the ALJ’s conclusion, a court may not substitute its judgment for that
3 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457).
4 IV.

DISCUSSION

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Plaintiff contends that the ALJ failed properly to consider the opinions of

6 Dr. Warren David Yu, a consultative examining orthopedic surgeon. (Plaintiff’s
7 Motion at 3-4) (citing AR 269-72). As discussed in detail below, the Court agrees.
8 As the Court cannot find that the ALJ’s error was harmless, a remand is warranted.
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A.

Pertinent Law

In Social Security cases, courts employ a hierarchy of deference to medical

11 opinions depending on the nature of the services provided. Courts distinguish
12 among the opinions of three types of physicians: those who treat the claimant
13 (“treating physicians”) and two categories of “nontreating physicians,” namely
14 those who examine but do not treat the claimant (“examining physicians”) and
15 those who neither examine nor treat the claimant (“nonexamining physicians”).
16 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A
17 treating physician’s opinion is entitled to more weight than an examining
18 physician’s opinion, and an examining physician’s opinion is entitled to more
19 weight than a nonexamining physician’s opinion.2 See id. In general, the opinion
20 of a treating physician is entitled to greater weight than that of a non-treating
21 physician because the treating physician “is employed to cure and has a greater
22 opportunity to know and observe the patient as an individual.” Morgan v.
23 Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir.
24 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)).
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Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to
draw bright line distinguishing treating physicians from non-treating physicians; relationship is
better viewed as series of points on a continuum reflecting the duration of the treatment
relationship and frequency and nature of the contact) (citation omitted).
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The treating physician’s opinion is not, however, necessarily conclusive as

2 to either a physical condition or the ultimate issue of disability. Magallanes v.
3 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d
4 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician’s opinion is not
5 contradicted by another doctor, it may be rejected only for clear and convincing
6 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal
7 quotations omitted). The ALJ can reject the opinion of a treating physician in
8 favor of a conflicting opinion of another examining physician if the ALJ makes
9 findings setting forth specific, legitimate reasons for doing so that are based on
10 substantial evidence in the record. Id. (citation and internal quotations omitted);
11 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by
12 setting out detailed and thorough summary of facts and conflicting clinical
13 evidence, stating his interpretation thereof, and making findings) (citations and
14 quotations omitted); Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite
15 “magic words” to reject a treating physician opinion – court may draw specific and
16 legitimate inferences from ALJ’s opinion). “The ALJ must do more than offer his
17 conclusions.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). “He must
18 set forth his own interpretations and explain why they, rather than the
19 [physician’s], are correct.” Id. “Broad and vague” reasons for rejecting the
20 treating physician’s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599,
21 602 (9th Cir. 1989). These standards also apply to opinions of examining
22 physicians. See Andrews v. Shalala, 53 F.3d 1035, 1042-44 (9th Cir. 1995).
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B.

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On November 16, 2008, Dr. Warren David Yu, a state agency physician,

Pertinent Facts

25 performed an Orthopedic Evaluation of plaintiff which included a physical
26 examination. (AR 269-72). Based on his examination of plaintiff, Dr. Yu opined
27 that plaintiff: (i) could walk without an assistive device; (ii) could sit for six hours
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1 day; (iv) could occasionally lift 20 pounds, and frequently lift 10 pounds; (v) had
2 free use of the left upper extremity, but only frequent use of the right upper
3 extremity for pushing, pulling, fine finger motor movements, handling and
4 fingering; and (vi) was limited with regard to overhead activities on the right side.
5 (AR 272).
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In his decision, the ALJ noted, in pertinent part the following regarding Dr.

7 Yu’s opinions:
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Dr. Yu opined [that plaintiff] should be able to walk without an

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assistive device; is able to sit for 6 hours in an 8 hour workday;

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standing and walking is limited to 2 hours in an 8 hour workday;

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[plaintiff] can occasionally pick up 20 pounds and frequently 10

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pounds; he should have free use of his left upper extremity and

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frequent use of his right upper extremity for pushing, pulling, fine

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finger motor movements, handling and fingering; and he should be

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limited with regard to overhead activities on the right side.

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The undersigned has read and considered the opinions of Dr.

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Yu and gives them great weight. Dr. Yu had the opportunity to

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examine [plaintiff] and is a qualified expert in the field in which his

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opinions are based upon. However, Dr. Yu did not have an

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opportunity to review [plaintiff’s] records or listen to the testimony in

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this matter. The undersigned has given greater weight to [plaintiff’s]

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subjective complaints.

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C.

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Plaintiff argues that the ALJ failed properly to account for Dr. Yu’s opinion

Analysis

26 that plaintiff was limited to “frequent use of his right upper extremity for pushing,
27 pulling, fine finger motor movements, handling and fingering.” (Plaintiff’s
28 Motion at 3-4). The Court agrees.
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Although the ALJ gave “great weight” to Dr. Yu’s opinions, and

2 specifically noted Dr. Yu’s opinion that plaintiff was limited to “frequent use of
3 his right upper extremity for pushing, pulling, fine finger motor movements,
4 handling and fingering,” the ALJ did not include such limitations in the residual
5 functional capacity assessment for plaintiff or in the hypothetical question posed
6 to the vocational expert. (AR 15, 62-67). The ALJ’s failure to account for such
7 significant and probative medical opinion evidence was legal error. See Vincent
8 v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (An ALJ must provide an
9 explanation when he rejects “significant probative evidence.”) (citation omitted).
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The Court cannot find such error harmless. As defendant concedes, the

11 requirements of two of the representative jobs identified by the vocational expert
12 (i.e., Assembler [DOT § 734.687-018] and Laminator [DOT § 690.685-258]) are
13 inconsistent with limitations to “frequent” pushing, pulling, fine finger motor
14 movements, handling and fingering. (Defendant’s Motion at 4). Considering the
15 ALJ’s assessment that plaintiff retained the residual functional capacity to do only
16 a limited range of sedentary work, and the vocational expert’s testimony that
17 additional limitations could significantly erode an already limited occupational
18 base, the Court cannot conclude that the vocational expert would have opined (or
19 that the ALJ relying upon such opinion would have determined) that plaintiff
20 could perform work which exists in significant numbers in the national economy if
21 the ALJ had included in the hypothetical question limitations to frequent pushing,
22 pulling, fine finger motor movements, handling and fingering for plaintiff ’s right
23 upper extremity. Therefore, the Court cannot find that the ALJ’s error was
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Accordingly, this case must be remanded to permit the ALJ properly to

26 consider the medical opinion evidence.
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1 V.

CONCLUSION3

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For the foregoing reasons, the decision of the Commissioner of Social

3 Security is reversed in part, and this matter is remanded for further administrative
4 action consistent with this Opinion.4
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LET JUDGMENT BE ENTERED ACCORDINGLY.

6 DATED: November 22, 2011
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______________/s/___________________
Honorable Jacqueline Chooljian
UNITED STATES MAGISTRATE JUDGE

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The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s

23 decision, except insofar as to determine that a reversal and remand for immediate payment of
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When a court reverses an administrative determination, “the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation.”
Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and
quotations omitted). Remand is proper where, as here, additional administrative proceedings
could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir.
1989).
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