Ruben Valdez v. Carolyn W Colvin

Filing 22

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See Order for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION

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12 RUBEN VALDEZ,

Case No. ED CV 14-00853-AS

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MEMORANDUM OPINION AND

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)
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Plaintiff,
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v.
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CAROLYN W. COLVIN,
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Acting Commissioner of the
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Social Security Administration,)
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Defendant.
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ORDER OF REMAND

Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED
that this matter is remanded for further administrative action
consistent with this Opinion.

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PROCEEDINGS

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On May 7, 2014, Plaintiff filed a Complaint seeking review of the

25 denial of his applications for Disability Insurance Benefits and for
26 Social Security Income.

(Docket Entry No. 3).

The parties have

27 consented to proceed before the undersigned United States Magistrate
28 Judge. (Docket Entry Nos. 8-9). On September 9, 2014, Defendant filed

1 an Answer along with the Administrative Record (“AR”).
2 Nos. 11-12).

(Docket Entry

The parties filed a Joint Position Statement (“Joint

3 Stip.”) on January 7, 2015, setting forth their respective positions
4 regarding Plaintiff’s claims.

(Docket Entry No. 29).

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The Court has taken this matter under submission without oral

7 argument.

See C.D. Cal. L.R. 7-15; “Order Re: Procedures in Social

8 Security Case,” filed May 13, 2014 (Docket Entry No. 6).
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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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On June 28, 2011, Plaintiff, formerly employed as a lead man in a

13 plastic factory (see AR 29-30, 205), filed applications for Disability
14 Insurance Benefits and Social Security Income, both alleging an
15 inability to work since January 18, 2001. (See AR 152-179). On January
16 17, 2013, the Administrative Law Judge (“ALJ”), Jennifer Simmons, heard
17 testimony from Plaintiff and vocational expert Aida Y. Worthington. (See
18 AR 24-36).

On February 19, 2013, the ALJ issued a decision denying

19 Plaintiff’s applications.

(See AR 11-18).

After determining that

20 Plaintiff had a severe impairment –- spondylotlisthesis with spinal
21 stenosis (AR 13-14) --, the ALJ found that Plaintiff had the residual
22 functional capacity (“RFC”)1 to perform medium work2 with the following
23 limitations: sitting and/or standing every 2 to 3 hours for 2 to 3
24 minutes at a time; frequently climbing ramps, stairs, balancing,
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A Residual Functional Capacity is what a claimant can still
See 20

26 do despite existing exertional and nonexertional limitations.
C.F.R. § 404.1545(a)(1).
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“Medium work involves lifting no more than 50 pounds
28 with frequent lifting or carrying of objects weighing up to 25 at a time
pounds.”
20 C.F.R. §§

404.1567(c) and 416.967(c).
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1 stooping, kneeling, crouching, and crawling; and occasionally climbing
2 ladders. (AR 14-17).

Finding that Plaintiff was able to perform his

3 past relevant work as a machine setter/supervisor, blow molding machine
4 operator, and machine setter supervisor (AR 17), the ALJ found that
5 Plaintiff was not disabled within the meaning of the Social Security
6 Act. (AR 17-18).
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Plaintiff requested that the Appeals Council review the ALJ’s

9 decision. (See AR 101). The request was denied on March 6, 2014. (AR
10 1-3).

The ALJ’s decision then became the final decision of the

11 Commissioner, allowing this Court to review the decision. See 42 U.S.C.
12 §§ 405(g), 1383(c).
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PLAINTIFF’S CONTENTIONS

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Plaintiff alleges that the ALJ failed to: (1) properly consider

17 the findings of the consultative examiner; and (2) properly consider the
18 opinion of Plaintiff’s treating physician. (See Joint Stip. at 3-5, 719 13, 17).
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After consideration of the record as a whole, the Court finds that

22 Plaintiff’s first claim of error has merit and warrants a remand for
23 further consideration. Since the Court is remanding the matter based on
24 Plaintiff’s first claim of error, the Court will not address Plaintiff’s
25 second claim of error.
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DISCUSSION

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3 A.

The ALJ’s Error in Failing to Evaluate the Opinion of Dr. Moazzaz

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Was Not Harmless

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Plaintiff asserts that the ALJ failed to provide specific and

7 legitimate reasons for rejecting the opinion of the consultative
8 examiner, Dr. Moazzaz. (See Joint Stip. at 3-5, 7). Defendant asserts
9 the ALJ’s error in failing to evaluate the opinion of Dr. Moazzaz was
10 harmless.

(See Joint Stip. at 5-7).

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On October 22, 2011, Payam Moazzaz, M.D., an orthopedic surgeon,

13 prepared a report following a complete orthopedic examination of
14 Plaintiff. (See AR 246-50). Dr. Moazzaz’s findings included inter alia
15 that Plaintiff has a “reciprocal gait pattern with normal heel and toe
16 walking”; “tenderness to palpation in the paraspinal musculature”; a
17 diminished range of motion in the lower back (flexion [65 degrees,
18 normal is 9k0 degrees, right and left bending [20 degrees, normal is 25
19 degrees]); “[s]traight leg raising is negative in the seated and supine
20 positions bilaterally”; a normal range of motion and no issues with
21 motor strength and sensation in the upper and lower extremities; and an
22 x-ray of the lumbar spine demonstrated no scoliosis, no evidence of
23 previous fracture, and grade 1 anerolisthesis at L4-L5.
24 49).

(See AR 247-

After diagnosing Plaintiff with L4-L5 spondylolisthesis, Dr.

25 Moazzaz found that Plaintiff had the following functional limitations:
26 lifting and carrying approximately 20 pounds occasionally and 10 pounds
27 frequently; standing and walking no more than 6 hours in an 8-hour
28 workday; sitting for 6 hours in an 8-hour workday, with normal breaks;
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1 occasional bending, kneeling, stooping, crawling and crouching; no
2 limitation regarding overhead activities or use of the hands for fine
3 and gross manipulative movements; and no limitation regarding the use of
4 an assistive device.

(See AR 246).

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The ALJ summarized Dr. Moazzaz’s clinical findings, diagnosis, and

7 opinion.

(See AR 16).

However, the ALJ did not assign any weight to

8 Dr. Moazzaz’s opinion.
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An examining physician’s opinion is entitled to greater weight than

11 that of a non-examining physician.

Lester v. Chater, 81 F.3d 821, 830

12 (9th Cir. 1996); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990).
13 The ALJ must provide specific and legitimate reasons supported by
14 substantial evidence in the record when rejecting the controverted
15 opinion of an examining physician. Lester v. Chater, supra; Andrews v.
16 Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995).
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Defendant concedes that the ALJ erred in not assigning any weight

19 to Dr. Moazzaz’s opinion, but contends that the error was harmless based
20 on the ALJ’s reliance on the opinion of the non-examining physician, Dr.
21 Ornsby.

(See Joint Stip. at 5-7).

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M. Ormsby, M.D., a non-examining physician, submitted three reports

24 based on his review of the medical evidence.
25 1A], 46-53 [Exhibit 2A], 54-61 [Exhibit 3A]).

(See AR 37-45 [Exhibit
In each report, Dr.

26 Ormsby opined that Plaintiff had the following limitations: frequently
27 lifting and/or carrying 25 pounds and occasionally lifting and/or
28 carrying 50 pounds; standing and/or walking about 6 hours in an 8-hour
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1 workday; sitting about 6 hours in an 8-hour workday, but must
2 periodically (every 2 to 3 hours) sit and stand to relieve pain and
3 discomfort; unlimited pushing and/or pulling; climbing ramps/staris,
4 balancing,

stooping,

kneeling

and

crouching;

climbing

5 ladders/ropes/scaffolds occasionally, but should avoid when using pain
6 medication; and no manipulative, visual, communicative and environmental
7 limitations.

(See AR 41-43, 50-52, 59-60).

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The ALJ addressed the opinions of Dr. Ormsby, as well as the other

10 non-examining physician (S. Lee, M.D., who, on May 9, 2012, provided the
11 same opinion about Plaintiff’s functional limitations as Dr. Ormsby, see
12 AR 70-71 [Exhibit 6A], 79-80 [Exhibit 7A]), as follows:
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In

determining

the

claimant’s

residual

functional

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capacity, the undersigned has given great weight to the

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opinions of the State Agency medical consultants (Exhs. 1A -

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3A, 6A, & 7A).

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concluded the claimant should be limited to a range of medium

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work.

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empowered to make judgments regarding whether a person has the

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severity of symptoms required either singly or in combination

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to meet or equal any conditions found under the medical

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Listings (see 20 CFR 404.1527(f)(1) and 416.927(f)(1)).

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undersigned finds nothing of record to contradict the State

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Agency medical consultants’ opinions herein that the claimant

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does not meet or equal a medical listing.

On initial review and reconsideration, they

State Agency medical consultants are specifically

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The

1

The

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laundry.

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Treatment

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treatment for nearly one year.

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capacity assessed by the State agency medical consultants is

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reasonable and consistent with the objective medical evidence.

claimant
He

admitted

he

was

acknowledged

he

watched

notes

indicated

the

able

to

his

claimant

clean

and

do

granddaughter.

did

not

receive

The residual functional

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8 (AR 16-17).
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Although Defendant argues that the ALJ’s error was harmless because

11 “it is clear from the decision that the ALJ rejected Dr. Moazzaz’s
12 opinion in favor of Dr. Ormsby’s expert medical opinion” and “[t]he ALJ
13 accepted Dr. Ormsby’s findings that Dr. Moazzaz’s opinion was too
14 restrictive based on Dr. Moazzaz’s own examination finding and clinical
15 testing” (see Joint Stip. at 6), the Court is unable to find that the
16 ALJ’s error was harmless. See Tommasetti v. Astrue, 533 F.3d 1035, 1038
17 (9th Cir. 2008)(an ALJ’s error is harmless “when it is clear from the
18 record. . . that it was ‘inconsequential to the ultimate nondisability
19 determination.’”).
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Contrary to Defendant’s assertion, it is not clear that the ALJ

22 rejected Dr. Moazzaz’s opinion based solely on Dr. Ormsby’s assessment
23 that Dr. Moazzaz’s opinion regarding Plaintiff’s functional limitations
24 was too restrictive.

The ALJ did not separately discuss Dr. Ormsby’s

25 opinion, but rather, gave “great weight to the opinions of the state
26 agency medical consultants” (AR 16)(emphasis added), referring to the
27 reports prepared by Dr. Ormsby and Dr. Lee.

Id.

While Dr. Ormbsy

28 considered Dr. Moazzaz’s clinical findings (“Ortho CE PE documented
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1 above; including normal gait, slight decreased flexion and lateral
2 bending of thoracolumbar spine, -SLR, normal motor strength and normal
3 sensory,” (AR 40, 49, 57) and found that Dr. Moazzaz’s opinion to be
4 too restrictive (“Agree that light rfc is too restrictive based on
5 limited PE abnormalities and mild degenerative changes per recent
6 imaging,” (AR 40, 49, 57), there is no indication that Dr. Lee
7 specifically considered Dr. Moazzaz’s clinical findings in his opinion
8 (see AR 65-82).

Therefore,

the

Court

cannot

accept

Defendant’s

9 assertion that the ALJ’s rejection of Dr. Moazzaz’s opinion regarding
10 Plaintiff’s functional limitations was based on his adoption of Dr.
11 Ormsby’s assessment that Dr. Moazzaz’s opinion was too restrictive.
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Moreover, since the ALJ did not identify what independent objective

14 medical evidence was consistent with Dr. Ormby’s opinion (or Dr. Lee’s
15 opinion), it is not clear from the record that Dr. Ormby’s opinion,
16 alone, would have provided a proper basis for rejecting Dr. Moazzaz’s
17 opinion.

See

Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.

18 2001)(“Although the contrary opinion of a non-examining medical expert
19 does not alone constitute a specific, legitimate reason for rejecting a
20 treating or examining physician’s opinion, it may constitute substantial
21 evidence when it is consistent with other independent evidence in the
22 record.”)(citation omitted); Thomas v. Barnhart, 278 F.3d 947, 957 (9th
23 Cir. 2002)(The opinion of a non-examining physician “may also serve as
24 substantial evidence when the opinions are consistent with independent
25 clinical findings or other evidence in the record.”).
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1 B.

Remand Is Warranted

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The decision whether to remand for further proceedings or order an

4 immediate award of benefits is within the district court’s discretion.
5 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000).

Where no

6 useful purpose would be served by further administrative proceedings, or
7 where the record has been fully developed, it is appropriate to exercise
8 this discretion to direct an immediate award of benefits.

Id. at 1179

9 (“[T]he decision of whether to remand for further proceedings turns upon
10 the likely utility of such proceedings.”). However, where, as here, the
11 circumstances of the case suggest that further administrative review
12 could remedy the Commissioner’s errors, remand is appropriate.

McLeod

13 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, supra,
14 211 F.3d at 1179-81.
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Since the ALJ failed to provide specific and legitimate reasons for

17 rejecting the opinion of the consultative examiner (Dr. Moazzaz)

with

18 respect to Plaintiff’s functional limitations, remand is appropriate.
19 Because outstanding issues must be resolved before a determination of
20 disability can be made, and “when the record as a whole creates serious
21 doubt as to whether the [Plaintiff] is, in fact, disabled within the
22 meaning of the Social Security Act,” further administrative proceedings
23 would serve a useful purpose and remedy defects. Burrell v. Colvin, 775
24 F.3d 1133, 1141 (9th Cir. 2014)(citations omitted).3
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The Court has not reached any other issue raised by Plaintiff
except insofar as to determine that reversal with a directive for the
immediate payment of benefits would not be appropriate at this time.
“[E]valuation of the record as a whole creates serious doubt that
Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995,

(continued...)
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ORDER

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For the foregoing reasons, the decision of the Commissioner is

4 reversed, and the matter is remanded for further proceedings pursuant to
5 Sentence 4 of 42 U.S.C. § 405(g).
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LET JUDGMENT BE ENTERED ACCORDINGLY.

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9 DATED: September 17, 2015
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/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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(...continued)

1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s
claim regarding whether the ALJ properly considered the opinion of
Plaintiff’s treating physician (see Joint Stip. at 7-13, 17). Because
this matter is being remanded for further consideration, this issue
should also be considered on remand.
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