Yolanda Torres v. Carolyn W. Colvin

Filing 21

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 YOLANDA TORRES, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) Case No.: ED CV 13-1345-PJW ) ) ) ) MEMORANDUM OPINION AND ORDER ) ) ) ) ) ) ) 16 I. 17 18 19 20 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 21 (“ALJ”) erred when she: (1) found that Plaintiff was not 22 credible, (2) rejected the treating doctors’ opinions, and 23 (3) relied on the vocational expert’s testimony. For the 24 reasons explained below, the Court concludes that the ALJ erred 25 and remands the case to the Agency for further proceedings. 26 27 28 1 II. 1 SUMMARY OF PROCEEDINGS In December 2010, Plaintiff applied for SSI and DIB, 2 3 alleging that she was disabled due to carpal tunnel syndrome, 4 tendinitis, and headaches. 5 60, 170.) 6 reconsideration. 7 hearing before an ALJ. 8 appeared with counsel and testified at the hearing. 9 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 10 16-29.) Plaintiff appealed to the Appeals Council, which denied 11 review. (AR 4-11.) She then commenced this action. III. 12 ANALYSIS 13 A. The ALJ’s Credibility Determination 14 Plaintiff testified, in essence, that she experienced such 15 severe pain in her arms, hands, and body that she was unable to 16 work. 17 For the following reasons, the Court finds that she erred in 18 doing so. 19 The ALJ rejected this testimony for a number of reasons. ALJs are responsible for judging the credibility of 20 witnesses, including the claimants. In making these 21 determinations, they can rely on ordinary credibility evaluation 22 techniques. 23 1996). 24 an impairment which could reasonably be expected to produce the 25 symptoms alleged and there is no evidence of malingering, an ALJ 26 may only reject the claimant’s testimony for specific, clear, 27 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 28 2 1 substantial evidence in the record. 2 F.3d 947, 959 (9th Cir. 2002). 3 Thomas v. Barnhart, 278 The ALJ cited a number of reasons for questioning 4 Plaintiff’s testimony. 5 somewhat normal level of daily activity,” including driving, 6 shopping, attending her daughter’s school meetings, and 7 occasionally eating out in restaurants, and concluded that this 8 undermined her testimony that her pain precluded her from 9 working. (AR 21.) She noted that Plaintiff “engaged in a Though the record supports the ALJ’s finding 10 that Plaintiff performed these activities, the Court does not 11 agree with the ALJ that her ability to perform them undermined 12 her testimony that she could not work. 13 brief, non-strenuous activities that do not establish that 14 Plaintiff was lying when she claimed that she could not work 15 full time. 16 Cir. 2001) (“This court has repeatedly asserted that the mere 17 fact that a plaintiff has carried on certain daily activities, 18 such as grocery shopping, driving a car, or limited walking for 19 exercise, does not in any way detract from her credibility as to 20 her overall disability.”). 21 how Plaintiff’s ability to drive, for example, translated into 22 an ability to work full time. 23 F.2d 1197, 1201 (9th Cir. 1990) (holding ALJ errs in failing to 24 explain how ability to perform daily activities translated into 25 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 26 The ALJ also relied on the fact that Plaintiff seemed to 27 contradict herself when she testified that she had no trouble 28 walking but also testified that she could no longer walk one3 1 half mile two to three times a week because of pain. 2 Though the ALJ is entitled to rely on inconsistencies in a 3 claimant’s testimony in evaluating her credibility, the 4 transcript does not support the ALJ’s finding that Plaintiff 5 contradicted herself. 6 problem walking but added that “it depends on the distance.” 7 (AR 58.) 8 she used to walk one-half mile with her husband two to three 9 times a week but had stopped because of the pain. 10 11 (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 12 fatigued was contradicted by her testimony that she took naps 13 for four to six hours on certain days and still slept through 14 the night. 15 contradictory, either. 16 testimony that she suffers from fatigue and that is why she naps 17 during the day. 18 (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 19 found that it did not support Plaintiff’s testimony. 20 at, for example, the fact that Plaintiff had a full range of 21 motion in her right elbow even though she claimed that she 22 suffered from pain in her right arm and hand. 23 Court does not find this to be a persuasive reason for 24 questioning Plaintiff’s testimony as none of the doctors opined 25 that a full range of motion in her elbow was inconsistent with 26 her claim that she suffered from pain in her arm and hand. 27 28 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 4 1 is “a common side effect of prolonged and/or chronic pain due to 2 lack of use of a muscle to avoid pain.” 3 pointed out that the examining doctor had not detected any 4 atrophy and surmised that the lack of atrophy indicated that 5 Plaintiff was exaggerating her claims of severe pain. 6 The problem with this finding is that it is premised on the 7 ALJ’s medical conclusion that absence of atrophy establishes 8 regular use of the limb. 9 cannot rely on her own medical expertise to draw this inference 10 11 (AR 21.) The ALJ then (AR 21.) Though this makes sense, the ALJ from the evidence. The ALJ concluded that Plaintiff’s treatment was 12 conservative and that this indicated a lack of candor. (AR 21.) 13 Again, while the Court would agree that, generally speaking, a 14 claimant’s decision to treat a condition conservatively is a 15 valid reason for questioning a claimant’s testimony, it 16 disagrees with the ALJ’s characterization of Plaintiff’s 17 treatment as conservative. 18 treatment to resolve her carpal tunnel syndrome and other 19 maladies in her wrists and arms, including three surgeries that 20 required her to undergo general anesthesia. 21 cortisone shots, physical therapy, and numerous types of pain 22 medications, including narcotics like Vicodin. 23 not find this treatment to be conservative nor is there anything 24 in the record to suggest that a more aggressive treatment was 25 called for and that Plaintiff chose to simply forgo it. 26 Thus, in the end, the Court finds that the reasons Plaintiff received extensive She also received The Court does 27 proffered by the ALJ for discounting Plaintiff’s testimony are 28 not valid. The issue that remains is whether the Court should 5 1 credit Plaintiff’s testimony as true and reverse the ALJ’s 2 decision or remand the case to the Agency for further 3 consideration of the credibility issue. 4 211 F.3d 1172, 1178 (9th Cir. 2000). 5 remand is warranted because it is not clear from the record 6 whether Plaintiff’s ailments and the pain caused by them 7 preclude her from performing all work, thus triggering her 8 entitlement to benefits. 9 876 (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, 10 mandatory and remanding case to Agency for reconsideration of 11 credibility issue). 12 sitting and probably would not have any problem standing. 13 58-59.) 14 with her right hand and ten with her left. 15 based on her testimony, it appears that there might be jobs that 16 she could perform in the workplace. 17 is remanded to the Agency to allow the ALJ to decide anew 18 whether Plaintiff’s testimony is credible and whether she can 19 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 20 B. The ALJ’s Analysis of the Doctors’ Opinions 21 The ALJ relied primarily on the examining doctor’s opinion 22 to conclude that Plaintiff was capable of working and was not 23 disabled. 24 and should have relied, instead, on her treating doctors’ 25 opinions that she was more limited. 26 the Court concludes that further development of this issue is 27 necessary. Plaintiff complains that the ALJ erred in doing so 28 6 For the following reasons, 1 ALJs are tasked with resolving conflicts in the medical 2 evidence. 3 1995). 4 evidence: treating doctors, examining doctors, and reviewing 5 doctors. 6 entitled to the greatest weight because they are hired to cure 7 and have more opportunity to know and observe the patient. 8 at 1041; see also 20 C.F.R. 416.927(d)(2) (“Generally, we give 9 more weight to opinions from your treating sources, since these 10 sources are likely to be the medical professionals most able to 11 provide a detailed, longitudinal picture of your medical 12 impairment(s) and may bring a unique perspective to the medical 13 evidence that cannot be obtained from the objective medical 14 findings alone or from reports of individual examinations”). 15 Examining doctors are next on the list, followed by reviewing 16 doctors. 17 1995). 18 opinion of any doctor and, where the opinion is contradicted, 19 may reject it for specific and legitimate reasons that are 20 supported by substantial evidence in the record. 21 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 22 filed a workers’ compensation action. One of her treating 23 doctors, Dr. Birnbaum, served as her worker’s compensation 24 doctor. 25 other doctors who examined or treated her in connection with her 26 workers’ compensation case in support of her claim for 27 disability in this case. 28 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 7 1 the examining physician, Dr. Sophon. In explaining why, the ALJ 2 began with her general assessment of doctors in the workers’ 3 compensation arena: 4 [P]hysicians retained by either party in the context of 5 workers’ compensation cases are often biased and do not 6 provide truly objective opinions. 7 physician in the context of a workers’ compensation claim 8 often serves as an advocate for the claimant and describes 9 excessive limitations to enhance the claimant’s financial 10 11 12 The claimant’s treating recovery. (AR 22.) The ALJ then went on to explain that “disability” under 13 workers’ compensation law is different from “disability” under 14 Social Security law and concluded that, therefore, “the 15 credibility of and relevance of the opinions of these physicians 16 must be carefully assessed because of the involvement with the 17 workers’ compensation claim.” 18 (AR 22.) The ALJ’s focus on the fact that Plaintiff’s treating 19 doctors were employed by Plaintiff in connection with her 20 workers’ compensation case is clearly contrary to binding Ninth 21 Circuit case law and is rejected. 22 clear that the Agency is not allowed to discount a doctor’s 23 opinion simply because it was procured by a claimant in 24 connection with litigation and the ALJ suspects that the doctor 25 was biased as a result: In Lester, the circuit made 26 In rejecting the examining psychologist’s opinion, the ALJ 27 considered it to be significant that his reports “were 28 clearly obtained by the claimant’s attorney for the purpose 8 1 of litigation.” 2 obtained does not provide a legitimate basis for rejecting 3 them. 4 less weight when the examination is procured by the 5 claimant than when it is obtained by the Commissioner. 6 Ratto v. Secretary, 839 F. Supp. 1415, 1426 (D. Or. 1993). 7 As the Ratto court stated: “The Secretary may not assume 8 that doctors routinely lie in order to help their patients 9 collect disability benefits.” 10 11 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 12 doctors’ opinions were suspect because Plaintiff hired them in 13 connection with her workers’ compensation case is rejected.1 14 The Court also takes exception to the ALJ’s decision to 15 rely on the examining doctor’s opinion because it was not 16 contradicted by any of the other opinions. 17 the case, then, all things being equal, the ALJ should have 18 relied on the treating doctors’ opinion, since they, too, would 19 have to have been uncontradicted. 20 F.3d 715, 725 (9th Cir. 1998) (“The opinions of treating doctors 21 should be given more weight than the opinions of doctors who do 22 not treat the claimant. 23 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 24 1 25 26 27 28    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.   9 1 it may be rejected only for ‘clear and convincing’ reasons 2 supported by substantial evidence in the record. 3 quotation marks omitted).”). 4 Id. (internal The ALJ also discounted the treating doctors’ opinions 5 because, contained within them, were the doctors views on 6 disability, an issue reserved to the ALJ. 7 erred here, too. 8 doctors’ entire opinion because, in the context of the worker’s 9 compensation case, the doctor determined that Plaintiff was 10 disabled, which is, apparently, what doctors do in workers’ 11 compensation cases. 12 (9th Cir. 2007) (explaining, even if treating doctor’s opinion 13 is not entitled to controlling weight, it must still be 14 considered by ALJ); see also Holohan v. Massanari, 246 F.3d 15 1195, 1203 (9th Cir. 2001) (holding treating doctor’s 16 controverted opinion on ultimate issue of disability must be 17 credited unless it can be rejected for specific and legitimate 18 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 19 Thus, none of the reasons offered by the ALJ for 20 discounting the treating doctors’ opinions are valid. 21 is again faced with the choice of remanding the case for further 22 consideration or reversing the ALJ’s decision and remanding for 23 an award of benefits. 24 the [ALJ] fails to provide adequate reasons for rejecting the 25 opinion of a treating or examining physician, we credit that 26 opinion as a matter of law.”). 27 that remand is appropriate because it is not clear from the 28 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 10 1 value, that Plaintiff is disabled under Social Security law. 2 See Strauss v. Comm’r of Soc. Sec. Admin., 635 F.3d 1135, 1137 3 (9th Cir. 2011) (“A claimant is not entitled to benefits under 4 the statute unless the claimant is, in fact, disabled, no matter 5 how egregious the ALJ’s errors may be.”). 6 because the language used by the workers’ compensation doctors 7 is not readily transferable to Social Security proceedings. 8 And, though Plaintiff’s counsel attempted to translate the 9 reports for the Court (Joint Stip. at 20-21), it is still not This is primarily 10 clear based on these doctors’ reports whether Plaintiff is 11 disabled under Social Security law. 12 finds that the more prudent course is to let the ALJ, with the 13 help of Plaintiff’s counsel, translate these reports in the 14 first instance and determine whether Plaintiff is disabled under 15 the law.2 For that reason, the Court 16 C. The Vocational Expert’s Testimony 17 Plaintiff’s final ground for appeal is that the ALJ failed 18 to question the vocational expert about how Plaintiff’s various 19 limitations would impact her ability to perform jobs identified 20 by the vocational expert. 21 further consideration. This issue, too, is remanded for On remand, the ALJ should determine the 22 2 23 24 25 26 27 28    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.) 11 1 full extent of Plaintiff’s limitations by readdressing the 2 medical evidence and Plaintiff’s testimony and then questioning 3 the vocational expert about what, if any, jobs Plaintiff can 4 still perform despite her limitations. IV. CONCLUSION 5 6 For these reasons, the ALJ’s decision is reversed and the 7 case is remanded to the Agency for further proceedings 8 consistent with this Memorandum Opinion and Order. 9 10 IT IS SO ORDERED. DATED:   November 7, 2014 11 12 13 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Social Security\TORRES\Memo Opinion and Order.docx 12

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