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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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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GARY ADRIAN, et al.,

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Plaintiffs,

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v.

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CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,

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Defendant.

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No. ED CV 13-00897-VBK
MEMORANDUM OPINION
AND ORDER
(Social Security Case)

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This matter is before the Court for review of the decision by the

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Commissioner of Social Security denying Plaintiff’s application for

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disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have

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consented that the case may be handled by the Magistrate Judge. The

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action arises under 42 U.S.C. §405(g), which authorizes the Court to

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enter judgment upon the pleadings and transcript of the Administrative

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Record (“AR”) before the Commissioner. The parties have filed the

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Joint Stipulation (“JS”), and the Commissioner has filed the certified

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AR.

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Plaintiff raises the following issues:

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1.

Whether

the Administrative Law Judge (“ALJ”) properly

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evaluated the opinions of the treating physician;
2.

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consultative psychiatrist; and
3.

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Whether the ALJ properly evaluated the opinions of the

Whether the ALJ properly evaluated the opinions of the
Agreed Medical Examiner.

(JS at 3.)

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Since the Court determines that the first issue is dispositive of

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the outcome, the Court declines to address the second and third

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issues.

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This Memorandum Opinion will constitute the Court’s findings of

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fact and conclusions of law. After reviewing the matter, the Court

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concludes

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Commissioner must be reversed and the matter remanded for calculation

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of benefits.

that

for

the

reasons

set

forth,

the

Decision

of

the

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I

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THE ALJ FAILED TO PROPERLY EVALUATE THE OPINIONS

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OF TREATING PHYSICIAN DR. STEIGER

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Joylynn Adrian (“Claimant” or “Ms. Adrian”) originally filed her

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application for a period of disability and disability insurance

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benefits on May 29, 2007. (AR 350-352.) After administrative denials,

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she requested and was granted a hearing on March 24, 2009 before an

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ALJ, at which time Ms. Adrian testified, along with a medical expert

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(“ME”), and vocational expert (“VE”). (AR 136-158.)

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hearing was held on September 14, 2009 in which, again, testimony was

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taken from Ms. Adrian and a VE. (AR 120-135.)

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Decision denying benefits on November 5, 2009. (AR 162-173.) Pursuant
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A supplemental

The ALJ then issued a

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to a request for review, the Appeals Council remanded the matter for

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further administrative hearing. (AR 174-178.)

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conducted a hearing on November 21, 2011, at which time testimony was

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taken

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representative of the estate of Joy Adrian, who had passed away during

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the request for review procedure before the Appeals Council. (AR 105-

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119.)

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2011. (AR 26-47.)

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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,

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Decision.

The Court thus reviews that Decision in this civil action.

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See 42 U.S.C. §§ 405(g); 1383(c).

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Dr. Ralph N. Steiger acted as Plaintiff’s treating physician, and

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also prepared a Medical Source Statement on October 10, 2007 at the

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request of the Social Security Administration. (AR 580-582.)

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upon his treatment of Ms. Adrian, Dr. Steiger opined that she would be

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able to lift and carry up to 10 pounds occasionally and less than 10

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pounds frequently; that she could stand/walk less than two hours per

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workday; that she required a cane and a walker to ambulate; that she

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could sit for only 15 to 30 minutes in an eight-hour workday; and that

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she needs to alternate between sitting and standing every 5 to 10

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minutes. (AR 580-581.)

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the ALJ into the residual functional capacity (“RFC”) determined in

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the Decision, the parties do not dispute that Ms. Adrian would have

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been determined to be disabled for purposes of Social Security

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benefits.

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hypothetical restrictions to the VE which were in addition to those

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posited by the ALJ at AR 125-126.

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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

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The additional restrictions were

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eight-hour day.

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that such an individual would be disabled because she would only be

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able

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employment. (AR 127.)

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whether or not the ALJ provided legally sufficient reasons to reject

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the restrictions on Ms. Adrian’s exertional abilities as determined by

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Dr. Steiger.

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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

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The Court must search the four corners of the ALJ’s Decision to

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locate articulated “specific and legitimate” reasons for rejecting Dr.

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Steiger’s opinion.

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Cir. 1995).

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evaluation of Dr. Steiger’s opinion in a neutral, unbiased fashion.

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Unfortunately, that was not the case.

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articulated an extreme bias against “medical records ... prepared in

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the context of adversarial workers’ compensation claim[s].” (AR 37.)

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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

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“The physicians retained by either party in the context of

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workers’ compensation cases are often biased and do not

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provide truly objective opinions.

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physician in the context of a workers’ compensation claim

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are

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opinions. The claimant’s treating physician in the context

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of a workers’ compensation claim often serves as an advocate

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for the claimant and describes excessive limitations to

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enhance the claimant’s financial recovery.”

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often

biased

and

do

not

(AR 37-38.)

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The claimant’s treating

provide

truly

objective

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None

of

this

bias

is

found

in

statute,

Social

Security

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regulations, or Ninth Circuit decisions.

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true. As noted by Judge Wistrich in his opinion in Booth v. Barnhart,

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181 F.Supp.2d 1099 (C.D. Cal. 2002):

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“Workers’

compensation

In fact, the opposite is

disability

ratings

are

not

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controlling in disability cases decided under the Social

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Security Act, and the terms of art used in the California

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workers’ compensation guidelines are not equivalent to

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Social

Security

disability

terminology.

See

Macri

v.

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Chater, 93 F.3d 540, 544 (9th Cir. 1996); Desrosiers v.

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Secretary of Health and Human Services, 846 F.2d 573, 576

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(9th Cir. 1988); see also Coria v. Heckler, 750 F.2d 245, 247

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(3rd Cir. 1984)(‘The ALJ correctly noted that there are

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different statutory tests for disability under workers’

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compensation statutes and under the Social Security Act.’);

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20 C.F.R.

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(Id. at 1104.)

§§404.1504, 416.904.”

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The ALJ must evaluate the opinions of physicians who examine and

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treat individuals in the workers’ compensation scheme. Their opinions

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cannot be ignored; the ALJ must draw logical inferences.

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supra, 93 F.3d at 544.

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See Macri,

In this case, however, the distinction between Social Security

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terms and workers’ compensation terms is not a factor.

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because, at the request of the Social Security Administration, Dr.

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Steiger completed a “Medical Source Statement - Physical” which, as

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the Court has noted, contained Dr. Steiger’s evaluation of Ms.

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Adrian’s ability to lift, sit, stand and/or walk, ambulate with the
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That is

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necessity of an assistive device, and alternate standing and sitting.

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The

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conclusions.

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report that

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Medical Source Statement. (AR 619-634.) Referencing only this report,

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the ALJ wrote that in the workers’ compensation context, “permanent

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and stationary” is not equivalent to the criteria used to determine

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disability

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Nevertheless, the ALJ indicated that he “has accounted for Dr.

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Steiger’s opinion and has provided a residual functional capacity that

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allows the claimant to stand or walk for two hours out of an eight-

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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.)

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Dr. Steiger had opined in his Medical Source Statement that Ms.

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Adrian could stand or walk less than two hours in an eight-hour

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workday.

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Steiger’s opinion, he in fact implicitly rejected it without providing

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any reason whatsoever.

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disability determination, in that there is no dispute that if Ms.

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Adrian was incapable of standing or walking for two hours out of an

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eight-hour workday, she would be disabled. Moreover, the ALJ provided

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no analysis or inclusion in the determined RFC of Dr. Steiger’s

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opinion that Ms. Adrian needed a cane or a walker to ambulate, and

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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

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Whether or not the ALJ chose to rely, instead, on the opinion of

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the non-examining, testifying ME, the issue here is whether specific

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and legitimate reasons were articulated in the ALJ’s Decision for

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rejecting Dr. Steiger’s opinions.

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there is no contradiction between the Medical Source Statement and the

They clearly were not.

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Moreover,

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permanent

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limitations.

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workers’ compensation case, and thus only addressed whether Ms.

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Adrian,

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existing work.

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Dr. Steiger went far beyond that, utilizing Social Security concepts

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and terminology.

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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

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whatsoever to reject them. As noted, if Dr. Steiger’s limitations had

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been accepted, Plaintiff would have been determined to be disabled.

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Thus, the question becomes what remedy is appropriate.

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determines that here, the “Smolen” test is applicable.

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Chater, 80 F.3d 1273, 1292 (9th Cir. 1996).

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the ALJ failed to provide legally sufficient reasons to reject Dr.

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Steiger’s

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resolved, and that had Dr. Steiger’s opinions been credited, Ms.

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Adrian would have been found disabled, the Court determines that the

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remedy here must be a remand for calculation and award of benefits.

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The Court is mindful that approximately seven years have passed since

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Ms. Adrian’s disability application was filed, and two evidentiary

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hearings were conducted. As Ms. Adrian is deceased, the record cannot

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be expanded.

opinion,

that

there

are

no

The Court

See Smolen v.

Based on the fact that

outstanding

issues

to

be

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Because the first issue is dispositive as to the question of

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disability, the Court determines that it need not address Plaintiff’s

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second and third issues.

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//

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//
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Consequently, the Decision of the Commissioner is reversed, and
the matter is remanded for calculation and award of benefits.
IT IS SO ORDERED.

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DATED: February 5, 2014

/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE

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