Gary Adrian v. Carolyn W Colvin

Filing 18

MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton re: APPLICATION for Order for Lifting Stay and Approving Proposed New Schedule 12 , MOTION to Stay Case 10 . This Memorandum Opinion will constitute the Courts fin dings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth in the Memorandum, the Decision of the Commissioner must be reversed and the matter remanded for calculation and award of benefits. (rh)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 GARY ADRIAN, et al., 12 Plaintiffs, 13 14 v. 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 13-00897-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff’s application for 20 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record (“AR”) before the Commissioner. The parties have filed the 25 Joint Stipulation (“JS”), and the Commissioner has filed the certified 26 AR. 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge (“ALJ”) properly 1 2 evaluated the opinions of the treating physician; 2. 3 4 consultative psychiatrist; and 3. 5 6 Whether the ALJ properly evaluated the opinions of the Whether the ALJ properly evaluated the opinions of the Agreed Medical Examiner. (JS at 3.) 7 8 Since the Court determines that the first issue is dispositive of 9 the outcome, the Court declines to address the second and third 10 issues. 11 This Memorandum Opinion will constitute the Court’s findings of 12 fact and conclusions of law. After reviewing the matter, the Court 13 concludes 14 Commissioner must be reversed and the matter remanded for calculation 15 of benefits. that for the reasons set forth, the Decision of the 16 17 I 18 THE ALJ FAILED TO PROPERLY EVALUATE THE OPINIONS 19 OF TREATING PHYSICIAN DR. STEIGER 20 Joylynn Adrian (“Claimant” or “Ms. Adrian”) originally filed her 21 application for a period of disability and disability insurance 22 benefits on May 29, 2007. (AR 350-352.) After administrative denials, 23 she requested and was granted a hearing on March 24, 2009 before an 24 ALJ, at which time Ms. Adrian testified, along with a medical expert 25 (“ME”), and vocational expert (“VE”). (AR 136-158.) 26 hearing was held on September 14, 2009 in which, again, testimony was 27 taken from Ms. Adrian and a VE. (AR 120-135.) 28 Decision denying benefits on November 5, 2009. (AR 162-173.) Pursuant 2 A supplemental The ALJ then issued a 1 to a request for review, the Appeals Council remanded the matter for 2 further administrative hearing. (AR 174-178.) 3 conducted a hearing on November 21, 2011, at which time testimony was 4 taken 5 representative of the estate of Joy Adrian, who had passed away during 6 the request for review procedure before the Appeals Council. (AR 105- 7 119.) 8 2011. (AR 26-47.) 9 leaving the December 13, 2011 Decision as the Commissioner’s final from a VE, an ME, and Gary Adrian, On remand, the ALJ as the heir and The ALJ then issued an unfavorable Decision on December 13, The Appeals Council denied a request for review, 10 Decision. The Court thus reviews that Decision in this civil action. 11 See 42 U.S.C. §§ 405(g); 1383(c). 12 Dr. Ralph N. Steiger acted as Plaintiff’s treating physician, and 13 also prepared a Medical Source Statement on October 10, 2007 at the 14 request of the Social Security Administration. (AR 580-582.) 15 upon his treatment of Ms. Adrian, Dr. Steiger opined that she would be 16 able to lift and carry up to 10 pounds occasionally and less than 10 17 pounds frequently; that she could stand/walk less than two hours per 18 workday; that she required a cane and a walker to ambulate; that she 19 could sit for only 15 to 30 minutes in an eight-hour workday; and that 20 she needs to alternate between sitting and standing every 5 to 10 21 minutes. (AR 580-581.) 22 the ALJ into the residual functional capacity (“RFC”) determined in 23 the Decision, the parties do not dispute that Ms. Adrian would have 24 been determined to be disabled for purposes of Social Security 25 benefits. 26 hypothetical restrictions to the VE which were in addition to those 27 posited by the ALJ at AR 125-126. 28 that the individual would be unable to sit more than two hours in an Based If these limitations had been incorporated by At the hearing before the ALJ, Ms. Adrian’s counsel posed 3 The additional restrictions were 1 eight-hour day. 2 that such an individual would be disabled because she would only be 3 able 4 employment. (AR 127.) 5 whether or not the ALJ provided legally sufficient reasons to reject 6 the restrictions on Ms. Adrian’s exertional abilities as determined by 7 Dr. Steiger. 8 that the ALJ failed to do that. to work Even before the VE responded, the ALJ “stipulated” four hours a day, which is less than full-time Thus, the Court’s decision comes down to For the reasons to be set forth, the Court determines 9 The Court must search the four corners of the ALJ’s Decision to 10 locate articulated “specific and legitimate” reasons for rejecting Dr. 11 Steiger’s opinion. 12 Cir. 1995). 13 evaluation of Dr. Steiger’s opinion in a neutral, unbiased fashion. 14 Unfortunately, that was not the case. 15 articulated an extreme bias against “medical records ... prepared in 16 the context of adversarial workers’ compensation claim[s].” (AR 37.) 17 He added the following: See Lester v. Chater, 81 F.3d 821, 830-31 (9th The Court must also presume that the ALJ approached the In his Decision, the ALJ 18 “The physicians retained by either party in the context of 19 workers’ compensation cases are often biased and do not 20 provide truly objective opinions. 21 physician in the context of a workers’ compensation claim 22 are 23 opinions. The claimant’s treating physician in the context 24 of a workers’ compensation claim often serves as an advocate 25 for the claimant and describes excessive limitations to 26 enhance the claimant’s financial recovery.” 27 often biased and do not (AR 37-38.) 28 4 The claimant’s treating provide truly objective 1 None of this bias is found in statute, Social Security 2 regulations, or Ninth Circuit decisions. 3 true. As noted by Judge Wistrich in his opinion in Booth v. Barnhart, 4 181 F.Supp.2d 1099 (C.D. Cal. 2002): 5 “Workers’ compensation In fact, the opposite is disability ratings are not 6 controlling in disability cases decided under the Social 7 Security Act, and the terms of art used in the California 8 workers’ compensation guidelines are not equivalent to 9 Social Security disability terminology. See Macri v. 10 Chater, 93 F.3d 540, 544 (9th Cir. 1996); Desrosiers v. 11 Secretary of Health and Human Services, 846 F.2d 573, 576 12 (9th Cir. 1988); see also Coria v. Heckler, 750 F.2d 245, 247 13 (3rd Cir. 1984)(‘The ALJ correctly noted that there are 14 different statutory tests for disability under workers’ 15 compensation statutes and under the Social Security Act.’); 16 20 C.F.R. 17 (Id. at 1104.) §§404.1504, 416.904.” 18 19 The ALJ must evaluate the opinions of physicians who examine and 20 treat individuals in the workers’ compensation scheme. Their opinions 21 cannot be ignored; the ALJ must draw logical inferences. 22 supra, 93 F.3d at 544. 23 See Macri, In this case, however, the distinction between Social Security 24 terms and workers’ compensation terms is not a factor. 25 because, at the request of the Social Security Administration, Dr. 26 Steiger completed a “Medical Source Statement - Physical” which, as 27 the Court has noted, contained Dr. Steiger’s evaluation of Ms. 28 Adrian’s ability to lift, sit, stand and/or walk, ambulate with the 5 That is 1 necessity of an assistive device, and alternate standing and sitting. 2 The 3 conclusions. 4 report that 5 Medical Source Statement. (AR 619-634.) Referencing only this report, 6 the ALJ wrote that in the workers’ compensation context, “permanent 7 and stationary” is not equivalent to the criteria used to determine 8 disability 9 Nevertheless, the ALJ indicated that he “has accounted for Dr. 10 Steiger’s opinion and has provided a residual functional capacity that 11 allows the claimant to stand or walk for two hours out of an eight- 12 hour workday, ...” (AR 43.) ALJ did not clearly or definitively reject Dr. Steiger’s Rather, he commented upon a permanent and stationary Dr. Steiger wrote several months after he completed the under the Social Security Act. (See AR at 42-43.) 13 Dr. Steiger had opined in his Medical Source Statement that Ms. 14 Adrian could stand or walk less than two hours in an eight-hour 15 workday. 16 Steiger’s opinion, he in fact implicitly rejected it without providing 17 any reason whatsoever. 18 disability determination, in that there is no dispute that if Ms. 19 Adrian was incapable of standing or walking for two hours out of an 20 eight-hour workday, she would be disabled. Moreover, the ALJ provided 21 no analysis or inclusion in the determined RFC of Dr. Steiger’s 22 opinion that Ms. Adrian needed a cane or a walker to ambulate, and 23 could sit for only 15 to 30 minutes in an eight-hour workday. Thus, while the ALJ stated that he “accounted for” Dr. Moreover, this limitation is crucial to the 24 Whether or not the ALJ chose to rely, instead, on the opinion of 25 the non-examining, testifying ME, the issue here is whether specific 26 and legitimate reasons were articulated in the ALJ’s Decision for 27 rejecting Dr. Steiger’s opinions. 28 there is no contradiction between the Medical Source Statement and the They clearly were not. 6 Moreover, 1 permanent 2 limitations. 3 workers’ compensation case, and thus only addressed whether Ms. 4 Adrian, 5 existing work. 6 Dr. Steiger went far beyond that, utilizing Social Security concepts 7 and terminology. 8 9 and as stationary report, with regard to exertional The latter report was prepared in the context of the a workers’ compensation claimant, could perform her In contrast, the Medical Source Statement prepared by Thus, the Court concludes that the ALJ failed to properly evaluate Dr. Steiger’s opinions, and in fact, gave no reason 10 whatsoever to reject them. As noted, if Dr. Steiger’s limitations had 11 been accepted, Plaintiff would have been determined to be disabled. 12 Thus, the question becomes what remedy is appropriate. 13 determines that here, the “Smolen” test is applicable. 14 Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). 15 the ALJ failed to provide legally sufficient reasons to reject Dr. 16 Steiger’s 17 resolved, and that had Dr. Steiger’s opinions been credited, Ms. 18 Adrian would have been found disabled, the Court determines that the 19 remedy here must be a remand for calculation and award of benefits. 20 The Court is mindful that approximately seven years have passed since 21 Ms. Adrian’s disability application was filed, and two evidentiary 22 hearings were conducted. As Ms. Adrian is deceased, the record cannot 23 be expanded. opinion, that there are no The Court See Smolen v. Based on the fact that outstanding issues to be 24 Because the first issue is dispositive as to the question of 25 disability, the Court determines that it need not address Plaintiff’s 26 second and third issues. 27 // 28 // 7 1 2 3 Consequently, the Decision of the Commissioner is reversed, and the matter is remanded for calculation and award of benefits. IT IS SO ORDERED. 4 5 6 DATED: February 5, 2014 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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