Yolanda Torres v. Carolyn W. Colvin
Filing
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MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The ALJ's decision is reversed and the case is remanded to the Agency for further proceedings consistent with this Memorandum Opinion and Order. IT IS SO ORDERED. See order for further details. (jy)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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YOLANDA TORRES,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.
) Case No.: ED CV 13-1345-PJW
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) MEMORANDUM OPINION AND ORDER
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I.
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INTRODUCTION
Plaintiff appeals a decision by Defendant Social Security
Administration (“the Agency”), denying her application for
Supplemental Security Income (“SSI”) and Disability Insurance
Benefits (“DIB”).
She claims that the Administrative Law Judge
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(“ALJ”) erred when she: (1) found that Plaintiff was not
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credible, (2) rejected the treating doctors’ opinions, and
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(3) relied on the vocational expert’s testimony.
For the
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reasons explained below, the Court concludes that the ALJ erred
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and remands the case to the Agency for further proceedings.
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II.
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SUMMARY OF PROCEEDINGS
In December 2010, Plaintiff applied for SSI and DIB,
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alleging that she was disabled due to carpal tunnel syndrome,
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tendinitis, and headaches.
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60, 170.)
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reconsideration.
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hearing before an ALJ.
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appeared with counsel and testified at the hearing.
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The ALJ subsequently issued a decision denying benefits.
(Administrative Record (“AR”) 152-
The Agency denied the applications initially and on
Plaintiff then requested and was granted a
(AR 84-88.)
On February 27, 2012, she
(AR 35-64.)
(AR
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16-29.)
Plaintiff appealed to the Appeals Council, which denied
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review.
(AR 4-11.)
She then commenced this action.
III.
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ANALYSIS
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A. The ALJ’s Credibility Determination
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Plaintiff testified, in essence, that she experienced such
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severe pain in her arms, hands, and body that she was unable to
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work.
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For the following reasons, the Court finds that she erred in
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doing so.
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The ALJ rejected this testimony for a number of reasons.
ALJs are responsible for judging the credibility of
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witnesses, including the claimants.
In making these
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determinations, they can rely on ordinary credibility evaluation
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techniques.
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1996).
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an impairment which could reasonably be expected to produce the
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symptoms alleged and there is no evidence of malingering, an ALJ
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may only reject the claimant’s testimony for specific, clear,
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and convincing reasons, id. at 1283-84, that are supported by
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir.
But, where a claimant has produced medical evidence of
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substantial evidence in the record.
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F.3d 947, 959 (9th Cir. 2002).
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Thomas v. Barnhart, 278
The ALJ cited a number of reasons for questioning
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Plaintiff’s testimony.
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somewhat normal level of daily activity,” including driving,
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shopping, attending her daughter’s school meetings, and
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occasionally eating out in restaurants, and concluded that this
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undermined her testimony that her pain precluded her from
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working.
(AR 21.)
She noted that Plaintiff “engaged in a
Though the record supports the ALJ’s finding
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that Plaintiff performed these activities, the Court does not
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agree with the ALJ that her ability to perform them undermined
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her testimony that she could not work.
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brief, non-strenuous activities that do not establish that
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Plaintiff was lying when she claimed that she could not work
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full time.
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Cir. 2001) (“This court has repeatedly asserted that the mere
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fact that a plaintiff has carried on certain daily activities,
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such as grocery shopping, driving a car, or limited walking for
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exercise, does not in any way detract from her credibility as to
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her overall disability.”).
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how Plaintiff’s ability to drive, for example, translated into
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an ability to work full time.
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F.2d 1197, 1201 (9th Cir. 1990) (holding ALJ errs in failing to
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explain how ability to perform daily activities translated into
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ability to perform work).
They are relatively
See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th
Further, the ALJ failed to explain
See Gonzalez v. Sullivan, 914
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The ALJ also relied on the fact that Plaintiff seemed to
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contradict herself when she testified that she had no trouble
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walking but also testified that she could no longer walk one3
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half mile two to three times a week because of pain.
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Though the ALJ is entitled to rely on inconsistencies in a
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claimant’s testimony in evaluating her credibility, the
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transcript does not support the ALJ’s finding that Plaintiff
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contradicted herself.
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problem walking but added that “it depends on the distance.”
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(AR 58.)
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she used to walk one-half mile with her husband two to three
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times a week but had stopped because of the pain.
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(AR 21.)
She testified that she generally had no
On the next page of the transcript, she testified that
(AR 59.)
The
Court does not interpret the testimony as contradictory.
The ALJ found that Plaintiff’s testimony that she was
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fatigued was contradicted by her testimony that she took naps
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for four to six hours on certain days and still slept through
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the night.
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contradictory, either.
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testimony that she suffers from fatigue and that is why she naps
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during the day.
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(AR 21.)
The Court does not see these statements as
In fact, it seems to support Plaintiff’s
The ALJ next focused on the objective medical evidence and
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found that it did not support Plaintiff’s testimony.
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at, for example, the fact that Plaintiff had a full range of
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motion in her right elbow even though she claimed that she
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suffered from pain in her right arm and hand.
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Court does not find this to be a persuasive reason for
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questioning Plaintiff’s testimony as none of the doctors opined
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that a full range of motion in her elbow was inconsistent with
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her claim that she suffered from pain in her arm and hand.
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She looked
(AR 21.)
The
The Court has the same reaction to the ALJ’s discussion
about atrophy.
Without citation, the ALJ reported that atrophy
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is “a common side effect of prolonged and/or chronic pain due to
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lack of use of a muscle to avoid pain.”
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pointed out that the examining doctor had not detected any
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atrophy and surmised that the lack of atrophy indicated that
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Plaintiff was exaggerating her claims of severe pain.
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The problem with this finding is that it is premised on the
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ALJ’s medical conclusion that absence of atrophy establishes
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regular use of the limb.
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cannot rely on her own medical expertise to draw this inference
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(AR 21.)
The ALJ then
(AR 21.)
Though this makes sense, the ALJ
from the evidence.
The ALJ concluded that Plaintiff’s treatment was
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conservative and that this indicated a lack of candor.
(AR 21.)
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Again, while the Court would agree that, generally speaking, a
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claimant’s decision to treat a condition conservatively is a
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valid reason for questioning a claimant’s testimony, it
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disagrees with the ALJ’s characterization of Plaintiff’s
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treatment as conservative.
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treatment to resolve her carpal tunnel syndrome and other
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maladies in her wrists and arms, including three surgeries that
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required her to undergo general anesthesia.
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cortisone shots, physical therapy, and numerous types of pain
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medications, including narcotics like Vicodin.
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not find this treatment to be conservative nor is there anything
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in the record to suggest that a more aggressive treatment was
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called for and that Plaintiff chose to simply forgo it.
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Thus, in the end, the Court finds that the reasons
Plaintiff received extensive
She also received
The Court does
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proffered by the ALJ for discounting Plaintiff’s testimony are
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not valid.
The issue that remains is whether the Court should
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credit Plaintiff’s testimony as true and reverse the ALJ’s
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decision or remand the case to the Agency for further
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consideration of the credibility issue.
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211 F.3d 1172, 1178 (9th Cir. 2000).
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remand is warranted because it is not clear from the record
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whether Plaintiff’s ailments and the pain caused by them
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preclude her from performing all work, thus triggering her
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entitlement to benefits.
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876 (9th Cir. 2003) (holding “credit as true” doctrine not
See Harman v. Apfel,
The Court concludes that
See Connett v. Barnhart, 340 F.3d 871,
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mandatory and remanding case to Agency for reconsideration of
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credibility issue).
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sitting and probably would not have any problem standing.
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58-59.)
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with her right hand and ten with her left.
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based on her testimony, it appears that there might be jobs that
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she could perform in the workplace.
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is remanded to the Agency to allow the ALJ to decide anew
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whether Plaintiff’s testimony is credible and whether she can
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work.
As Plaintiff testified, she has no problem
(AR
And, according to Plaintiff, she can lift five pounds
(AR 58.)
Thus, even
For that reason, the issue
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B. The ALJ’s Analysis of the Doctors’ Opinions
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The ALJ relied primarily on the examining doctor’s opinion
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to conclude that Plaintiff was capable of working and was not
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disabled.
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and should have relied, instead, on her treating doctors’
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opinions that she was more limited.
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the Court concludes that further development of this issue is
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necessary.
Plaintiff complains that the ALJ erred in doing so
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For the following reasons,
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ALJs are tasked with resolving conflicts in the medical
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evidence.
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evidence: treating doctors, examining doctors, and reviewing
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doctors.
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entitled to the greatest weight because they are hired to cure
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and have more opportunity to know and observe the patient.
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at 1041; see also 20 C.F.R. 416.927(d)(2) (“Generally, we give
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more weight to opinions from your treating sources, since these
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sources are likely to be the medical professionals most able to
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provide a detailed, longitudinal picture of your medical
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impairment(s) and may bring a unique perspective to the medical
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evidence that cannot be obtained from the objective medical
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findings alone or from reports of individual examinations”).
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Examining doctors are next on the list, followed by reviewing
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doctors.
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1995).
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opinion of any doctor and, where the opinion is contradicted,
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may reject it for specific and legitimate reasons that are
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supported by substantial evidence in the record.
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Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
Generally speaking, three types of doctors supply that
All things being equal, treating doctors’ opinions are
Id.
See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.
ALJs, however, are not required to merely accept the
Id. at 830.
When Plaintiff’s ailments caused her to stop working, she
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filed a workers’ compensation action.
One of her treating
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doctors, Dr. Birnbaum, served as her worker’s compensation
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doctor.
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other doctors who examined or treated her in connection with her
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workers’ compensation case in support of her claim for
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disability in this case.
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these doctors’ opinions and relied, instead, on the opinion of
Plaintiff submitted records from Dr. Birnbaum and the
Ultimately, the ALJ did not rely on
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the examining physician, Dr. Sophon.
In explaining why, the ALJ
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began with her general assessment of doctors in the workers’
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compensation arena:
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[P]hysicians 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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often serves as an advocate for the claimant and describes
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excessive limitations to enhance the claimant’s financial
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The claimant’s treating
recovery.
(AR 22.)
The ALJ then went on to explain that “disability” under
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workers’ compensation law is different from “disability” under
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Social Security law and concluded that, therefore, “the
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credibility of and relevance of the opinions of these physicians
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must be carefully assessed because of the involvement with the
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workers’ compensation claim.”
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(AR 22.)
The ALJ’s focus on the fact that Plaintiff’s treating
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doctors were employed by Plaintiff in connection with her
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workers’ compensation case is clearly contrary to binding Ninth
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Circuit case law and is rejected.
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clear that the Agency is not allowed to discount a doctor’s
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opinion simply because it was procured by a claimant in
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connection with litigation and the ALJ suspects that the doctor
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was biased as a result:
In Lester, the circuit made
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In rejecting the examining psychologist’s opinion, the ALJ
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considered it to be significant that his reports “were
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clearly obtained by the claimant’s attorney for the purpose
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of litigation.”
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obtained does not provide a legitimate basis for rejecting
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them.
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less weight when the examination is procured by the
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claimant than when it is obtained by the Commissioner.
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Ratto v. Secretary, 839 F. Supp. 1415, 1426 (D. Or. 1993).
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As the Ratto court stated: “The Secretary may not assume
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that doctors routinely lie in order to help their patients
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collect disability benefits.”
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The purpose for which medical reports are
An examining doctor’s findings are entitled to no
Id.
Lester, 81 F.3d at 832.
Thus, the ALJ’s implication that Plaintiff’s treating
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doctors’ opinions were suspect because Plaintiff hired them in
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connection with her workers’ compensation case is rejected.1
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The Court also takes exception to the ALJ’s decision to
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rely on the examining doctor’s opinion because it was not
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contradicted by any of the other opinions.
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the case, then, all things being equal, the ALJ should have
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relied on the treating doctors’ opinion, since they, too, would
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have to have been uncontradicted.
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F.3d 715, 725 (9th Cir. 1998) (“The opinions of treating doctors
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should be given more weight than the opinions of doctors who do
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not treat the claimant.
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treating doctor’s opinion is not contradicted by another doctor,
(AR 25.)
If that is
See Reddick v. Chater, 157
Lester, 81 F.3d at 830.
Where the
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The Court finds it ironic that the ALJ is uncomfortable
relying on the treating doctors because they were paid by
Plaintiff but is willing to rely on the examining doctor who was
paid by the Agency. If the ALJ believes that doctors are
inclined to offer opinions that are consistent with the views of
the person who pays them, then the examining doctor’s opinion
should have been equally suspect.
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it may be rejected only for ‘clear and convincing’ reasons
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supported by substantial evidence in the record.
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quotation marks omitted).”).
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Id.
(internal
The ALJ also discounted the treating doctors’ opinions
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because, contained within them, were the doctors views on
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disability, an issue reserved to the ALJ.
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erred here, too.
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doctors’ entire opinion because, in the context of the worker’s
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compensation case, the doctor determined that Plaintiff was
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disabled, which is, apparently, what doctors do in workers’
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compensation cases.
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(9th Cir. 2007) (explaining, even if treating doctor’s opinion
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is not entitled to controlling weight, it must still be
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considered by ALJ); see also Holohan v. Massanari, 246 F.3d
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1195, 1203 (9th Cir. 2001) (holding treating doctor’s
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controverted opinion on ultimate issue of disability must be
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credited unless it can be rejected for specific and legitimate
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reasons).
(AR 25-26.)
The ALJ
She was not at liberty to simply disregard the
See Orn v. Astrue, 495 F.3d 625, 631-33
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Thus, none of the reasons offered by the ALJ for
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discounting the treating doctors’ opinions are valid.
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is again faced with the choice of remanding the case for further
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consideration or reversing the ALJ’s decision and remanding for
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an award of benefits.
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the [ALJ] fails to provide adequate reasons for rejecting the
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opinion of a treating or examining physician, we credit that
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opinion as a matter of law.”).
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that remand is appropriate because it is not clear from the
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record, even accepting the treating doctors’ opinions at face
The Court
See, e.g., Lester, 81 F.3d at 834 (“Where
Here, again, the Court finds
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value, that Plaintiff is disabled under Social Security law.
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See Strauss v. Comm’r of Soc. Sec. Admin., 635 F.3d 1135, 1137
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(9th Cir. 2011) (“A claimant is not entitled to benefits under
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the statute unless the claimant is, in fact, disabled, no matter
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how egregious the ALJ’s errors may be.”).
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because the language used by the workers’ compensation doctors
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is not readily transferable to Social Security proceedings.
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And, though Plaintiff’s counsel attempted to translate the
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reports for the Court (Joint Stip. at 20-21), it is still not
This is primarily
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clear based on these doctors’ reports whether Plaintiff is
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disabled under Social Security law.
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finds that the more prudent course is to let the ALJ, with the
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help of Plaintiff’s counsel, translate these reports in the
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first instance and determine whether Plaintiff is disabled under
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the law.2
For that reason, the Court
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C. The Vocational Expert’s Testimony
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Plaintiff’s final ground for appeal is that the ALJ failed
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to question the vocational expert about how Plaintiff’s various
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limitations would impact her ability to perform jobs identified
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by the vocational expert.
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further consideration.
This issue, too, is remanded for
On remand, the ALJ should determine the
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For example, Dr. Birnbaum determined at the end of his
treatment of Plaintiff that she was temporarily totally disabled
for four weeks. (AR 404.) Obviously, even crediting this
opinion as true, it would not be enough to establish that
Plaintiff was disabled under Social Security law because the law
requires a showing of disability for at least twelve months.
The same holds true for Dr. Cook’s report. (AR 560-631.) He
did not conclude that Plaintiff could not work. Rather, he
restricted her from work involving repetitive or forceful use of
her hands and arms. (AR 601.)
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full extent of Plaintiff’s limitations by readdressing the
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medical evidence and Plaintiff’s testimony and then questioning
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the vocational expert about what, if any, jobs Plaintiff can
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still perform despite her limitations.
IV. CONCLUSION
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For these reasons, the ALJ’s decision is reversed and the
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case is remanded to the Agency for further proceedings
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consistent with this Memorandum Opinion and Order.
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IT IS SO ORDERED.
DATED:
November 7, 2014
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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE
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S:\PJW\Cases-Social Security\TORRES\Memo Opinion and Order.docx
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