J. Guadalupe Martinez-Higuera v. Carolyn W. Colvin

Filing 28

MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver. IT IS ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter for further proceedings consistent with this Order. 1 (SEE ORDER FOR FURTHER DETAILS) (gr)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12

Plaintiff,

13

MEMORANDUM OPINION AND
ORDER

v.

14
15

Case No. ED CV 15-00705-RAO

J. GUADALUPE MARTINEZHIGUERA,

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

16

Defendant.

17
18

I.

19

INTRODUCTION

20
21
22
23
24
25
26
27
28

J. Guadalupe Martinez-Higuera (“Plaintiff”) challenges the Commissioner’s
denial of his applications for a period of disability and disability insurance benefits
(“DIB”) and supplemental security income (“SSI”) following an administrative law
judge’s (“ALJ”) decision that he was not under a disability as defined in the Social
Security Act. Administrative Record (“AR”) . For the reasons stated below, the
decision of the Commissioner is REVERSED and the action is REMANDED for
further proceedings consistent with this Order.
///

1

II.

2

PROCEEDINGS BELOW

3

On November 14, 2011, Plaintiff filed a Title II application for DIB, alleging

4

disability beginning October 1, 2010 (his alleged onset date (“AOD”)). AR 26.

5

Plaintiff also filed a Title XVI application for SSI on November 14, 2011, alleging

6

the same AOD. Id. Plaintiff’s applications were denied initially on May 10, 2012,

7

and upon reconsideration on November 8, 2012. Id. On November 21, 2012,

8

Plaintiff filed a written request for hearing, which was held on June 24, 2013. Id.

9

Represented by counsel, Plaintiff appeared and testified at the hearing with the

10

assistance of a Spanish interpreter, as did an impartial vocational expert (“VE”). Id.

11

at 26, 42. On July 15, 2013, the ALJ found that Plaintiff had not been under a

12

disability, as defined in the Social Security Act,1 from his AOD through the

13

decision date. Id. at 34. The ALJ’s decision became the final decision of the

14

Commissioner when the Appeals Council denied Plaintiff’s request for review. Id.

15

at 1-3. Plaintiff filed the instant action in this Court on April 10, 2015. Dkt. No. 1.

16

The ALJ followed a five-step sequential evaluation process to assess whether

17

Plaintiff was disabled. 20 C.F.R. §§ 404.1520, 416.920; see also Lester v. Chater,

18

81 F.3d 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had

19

not engaged in substantial gainful activity since the AOD. AR 28. At step two, the

20

ALJ found that Plaintiff has the following severe impairments: questionable nerve

21

damage to the right upper extremity; disc bulging in the cervical spine; and

22

hypertension. Id. At step three, the ALJ found that Plaintiff “does not have an

23

impairment or combination of impairments that meets or medically equals the

24

severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix

25

///

26

1

27
28

Persons are “disabled” for purposes of receiving Social Security benefits if they
are unable to engage in any substantial gainful activity owing to a physical or
mental impairment expected to result in death, or which has lasted or is expected to
last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A).
2

1

1.” Id. at 29 (citations omitted). At step four, the ALJ found that Plaintiff has the

2

residual functional capacity (“RFC”) to:

3
4
5
6
7
8
9
10
11

[P]erform a range of medium work as defined in 20 C.F.R.
404.1567(c) and 416.967(c) which permits lifting 50 pounds
occasionally and 25 pounds frequently with pushing and pulling
within those weight limits; standing and/or walking for 6 hours
and sitting for 6 hours. He can frequently climb ramps and
stairs and occasionally climb ladders, ropes and scaffolds; and
frequently balance, stoop, kneel, crouch and crawl. He has no
restriction with the left upper extremity for reaching, but with
the right upper extremity, he is limited to frequent reaching. He
can frequently perform gross manipulation (handling) and
fingering with the right upper extremity and has no limits with
the left upper extremity. He can frequently feel with the right
upper extremity.

12
13

Id. at 30. Based on his RFC and the VE’s testimony, the ALJ found that Plaintiff is

14

capable of performing past relevant work as a maintenance worker and cleaner. Id.

15

at 33. Accordingly, the ALJ did not proceed to step five, and instead, found that

16

Plaintiff had not been under a disability from his AOD through the date of the

17

ALJ’s decision. Id.

18

III.

19

STANDARD OF REVIEW

20

Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s

21

decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are

22

supported by substantial evidence, and if the proper legal standards were applied.

23

Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’

24

means more than a mere scintilla, but less than a preponderance; it is such relevant

25

evidence as a reasonable person might accept as adequate to support a conclusion.”

26

Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc.

27

Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial

28

evidence requirement “by setting out a detailed and thorough summary of the facts
3

1

and conflicting clinical evidence, stating his interpretation thereof, and making

2

findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted).

3

“[T]he Commissioner's decision cannot be affirmed simply by isolating a

4

specific quantum of supporting evidence. Rather, a court must consider the record

5

as a whole, weighing both evidence that supports and evidence that detracts from

6

the Secretary's conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.

7

2001) (citations and internal quotations omitted). “‘Where evidence is susceptible

8

to more than one rational interpretation,’ the ALJ's decision should be upheld.”

9

Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v.

10

Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see also Robbins, 466 F.3d at 882

11

(“If the evidence can support either affirming or reversing the ALJ's conclusion, we

12

may not substitute our judgment for that of the ALJ.”). The Court may review only

13

“the reasons provided by the ALJ in the disability determination and may not affirm

14

the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630

15

(9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)).

16

IV.

17

DISCUSSION

18

Plaintiff argues that the ALJ’s decision is not supported by substantial

19

evidence that Plaintiff retains the RFC to perform medium exertion.

See

20

Memorandum in Support of Plaintiff’s Complaint (“Pl. Memo.”) at 3-11, Dkt. No.

21

23. The Commissioner contends that this Court should uphold the ALJ’s findings

22

which were based on Plaintiff’s objective findings and upon an evaluation of his

23

symptoms. See Memorandum in Support of Defendant’s Answer (“Def. Memo.”)

24

at 2-6, Dkt. No. 24.

25

A. Applicable Law

26

A district court must uphold an ALJ’s RFC assessment when the ALJ has

27

applied the proper legal standard and substantial evidence in the record as a whole

28

supports the decision. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
4

1

The ALJ must consider all of the medical evidence in the record and “explain in

2

[his or her] decision the weight given to . . . [the] opinions from treating sources,

3

nontreating

4

§§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii). In making an RFC determination, the ALJ

5

may consider those limitations for which there is support in the record and need not

6

consider properly rejected evidence or subjective complaints. See Bayliss, 427 F.3d

7

at 1217 (upholding ALJ’s RFC determination because “the ALJ took into account

8

those limitations for which there was record support that did not depend on

9

[claimant’s] subjective complaints”). The Court must consider the ALJ’s decision

10

in the context of “the entire record as a whole,” and if the “evidence is susceptible

11

to more than one rational interpretation, the ALJ’s decision should be upheld.”

12

Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (internal

13

quotation marks and citation omitted).

sources,

and

other

nonexamining

sources.”

20

C.F.R.

14

An ALJ does not need to adopt any specific medical source’s RFC opinion as

15

his or her own. Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear

16

that it is the responsibility of the ALJ, not the claimant’s physician, to determine

17

residual functional capacity.”); 2o C.F.R. §§ 404.1546(c), 416.946(c) (“[T]he

18

administrative law judge . . . is responsible for assessing your residual functional

19

capacity.”). “The ALJ need not accept the opinion of any physician, including a

20

treating physician, if that opinion is brief, conclusory, and inadequately supported

21

by clinical findings.” See Batson, 359 F.3d at 1195; Thomas v. Barnhart, 278 F.3d

22

947, 957 (9th Cir. 2002).

23

B. Relevant Facts

24

In April or May, 2010, Plaintiff fell and injured his right shoulder, elbow,

25

wrist, neck, and hand while at work. AR 31, 760. Plaintiff was seen by various

26

doctors and other sources. Id. at 31. A review of Plaintiff’s voluminous medical

27

records shows that Plaintiff’s primary pain complaint is pain in his right upper

28

extremity, particularly the right shoulder, elbow, wrist and hand, resulting from the
5

1

work injury he suffered in 2010. See, e.g., id. at 43, 45, 230, 243, 420, 760, 790,

2

1124. With respect to the medical records, a medical report prepared by Dr.

3

Frykman, who performed an orthopedic/neurological consultation in this matter,

4

noted that the medical records were approximately two-inches thick and required

5

two hours of professional time to review.2 Id. at 796.

6

In the ALJ’s discussion of Plaintiff’s RFC, the ALJ noted that an “overview

7

of the claimant’s extensive medical record (most of which are in connection with

8

his workers’ compensation claim) documented his complaints of neck and right

9

upper extremity pain” stemming from Plaintiff’s work injury in May 2010:

10

The record shows that the claimant has been examined or treated

11

by a multitude of physicians, but notably, his treatment to date

12

has been conservative in nature, to include medications, physical

13

therapy, and shockwave treatment to his upper extremity.

14

...

15

The claimant’s pain complaints have been investigated with a

16

number of diagnostic studies.

17

cervical spine showing disc bulging at multiple levels (. . .). A

18

study of the right shoulder demonstrated evidence of supra and

19

infraspinatus tendinosis, acromioclavicular joint disease and

20

glenohumeral chondromalacia (. . .). MRI of the right elbow

21

demonstrated

22

epicondylitis. Also of record are EMG and nerve conduction

23

studies of the upper extremities which contain inconsistent

24

findings.

25

findings compatible with mild right carpal tunnel syndrome (. . .).

common

These include an MRI of the

flexor

tendinosis

and

medical

For example, a study in December 2010 indicated

26
27
28

2

Dr. Frykman examined Plaintiff on November 20, 2012, the same date of his
report and medical records review. AR 787-798. Dr. Frykman’s report is not
discussed in the ALJ’s decision.
6

1

However, a later study in September 2012 was entirely normal (. .

2

.), while an electrodiagnostic evaluation completed in January

3

2013 showed evidence of right carpal tunnel syndrome (. . .).

4

Whatever the etiology of the upper extremity complaints, the

5

examination findings of record reflect that the claimant maintains

6

good functioning of his hands and upper extremity. While the

7

physical

8

tenderness, decreased sensation, slight swelling and erythema and

9

a positive Phalen’s sign in the right wrist (. . .), the claimant still

10

maintains good mobility in his hands in terms of finger

11

approximation and in making a fist and has shown no joint

12

deformity or swelling; no thenar or hypothenar atrophy; intact

13

reflexes; and normal motor strength rated at 5/5/ (. . .).

14
15
16

examination

findings

of

record

have

included

AR 31.
The ALJ’s decision then proceeded to discuss the opinion evidence in the
record.

17

The ALJ accorded no weight to the opinions of Dr. La, Plaintiff’s

18

chiropractor, and Dr. Mirzaians, a chiropractor who performed a functional capacity

19

evaluation of Plaintiff. AR 32. Dr. La opined that Plaintiff was temporarily totally

20

disabled; Dr. Mirzaians opined that Plaintiff should not lift more than 21 pounds.

21

See, e.g., AR 32, 264, 930.

22

The ALJ gave little weight to the opinion of Dr. Glancz, an orthopedic

23

agreed medical examiner, who opined that Plaintiff was able to return to light work

24

lifting up to 15 pounds and twisting with his right wrist. AR 32. Dr. Glancz’s

25

report, dated August 13, 2012, contained a four-page summary of Plaintiff’s

26

medical records that he reviewed as part of his evaluation of Plaintiff, records

27

dating from October 2010 through March 2012. Id. at 761-65. After examining

28

Plaintiff, Dr. Glancz concluded:
7

1

It is my opinion however that this claimant is not temporarily

2

disabled, and he is able to return to light work lifting up to 15

3

pounds and twisting with his right wrist until I receive the final

4

reports.

5

Id. at 770.

6

In a supplemental report dated March 30, 2013, Dr. Glancz noted that he had

7

received and reviewed reports from several other doctors and notes an

8

inconsistency in the findings of two separate EMG and nerve conduction studies.

9

AR 1124. Dr. Glancz opined that “[t]he only way to [] rectify the situation would

10

be to order a repeat EMG and nerve conduction study by a mutually agreeable

11

neurologist and accept his or her findings.” Id. Dr. Glancz concluded that he was

12

not changing his opinion as expressed in his earlier report. Id.

13

In giving little weight to Dr. Glancz, the ALJ found:

14

[Dr. Glancz] opined that the claimant was able to return to light

15

work lifting up to 15 pounds and twisting with his right wrist [].

16

The existence of an impairment restricting lifting to this degree is

17

given little weight as it is inconsistent with the specific clinical

18

findings in his report. In this regard, Dr. Glancz reported that the

19

claimant had normal motor control of his shoulders, forearms,

20

elbows, wrists and hands without evidence of weakness or

21

atrophy in any muscle group; that perception to pinprick, light

22

touch and vibration were without deficits; that peripheral pulses

23

were equal and of normal amplitude; that there were no

24

varicosities or skin rashes; that reflexes in the upper extremities

25

were normal; and that there was slight pain over the right

26

shoulder and elbow areas and a positive Tinel’s sign. In his later

27

examination in March 2013, Dr. Glancz did note conflicting

28

EMG and nerve conduction studies to the claimant’s upper
8

1

extremities of a normal study as opposed to one showing a right

2

carpal tunnel syndrome and appears to question the presence of a

3

true carpal tunnel syndrome.

4

persuasiveness of his opinion.

5
6

This diminishes the overall

AR 33.
The ALJ gave the greatest weight to Dr. MacArthur, consultative orthopedic

7

examiner, who assessed Plaintiff with a medium work RFC.

8

MacArthur’s report, dated April 26, 2012, indicates that he reviewed one medical

9

record for Plaintiff, namely, an x-ray report of the lumbar spine from Desert

10

Medical Center dated September 14, 2011. AR 494.

11

AR 33.

Dr. MacArthur concluded:

After examining Plaintiff,

12

Right arm possible mild reflex sympathetic dystrophy due to

13

slight swelling and erythema of the right hand. The claimant

14

does have hypersensitivity.

15

temperature or moisture and there is definitely a non-organic

16

component to this right arm pain as well based on significant

17

mismatch between active [and] passive range of motion of the

18

right shoulder. I would expect mild functional deficit from this

19

condition.

20

The claimant can lift and/or carry (including upward pulling)

21

50 pounds occasionally and 25 pounds frequently.

22
23
24

He does not have change in

AR 498.
With respect to Dr. MacArthur’s examination, the ALJ’s decision
stated:

25

In April 2012, the claimant had a consultative orthopedic

26

examination with Dr. Robert MacArthur (. . .). His examination

27

found slight swelling and erythema of the right hand but with

28

essentially normal motor strength in both hands. The claimant
9

Dr.

1

did not restrict the use of either hand during the evaluation and

2

was able to approximate his fingers, make a fist and manipulate a

3

pen without difficulty. Dr. MacArthur assessed the claimant with

4

a generally medium functional capacity.

5

AR 33. The ALJ gave Dr. MacArthur’s opinion “the greatest weight, finding the

6

rationale expressed by this physician to be consistent with the treatment record, the

7

objective findings, the other opinion evidence, and the record as a whole. As such,

8

it forms the basis for the claimant’s residual functional capacity.” Id.

9

C. Analysis

10

Plaintiff contends that in determining his RFC, the ALJ erred by adopting the

11

opinion of Dr. MacArthur, the Commissioner’s consultative examiner, because Dr.

12

MacArthur diagnosed Plaintiff with reflex sympathetic dystrophy and lumbar spine

13

impairment and based his determination that Plaintiff could perform medium work

14

on these diagnoses. Pl. Memo. at 6-7. Plaintiff argues, first, that Dr. MacArthur

15

did not review the objective evidence, and second, that no other physician in the

16

record diagnosed or suggested a diagnosis of reflex sympathetic dystrophy. Id. at 7.

17

Plaintiff also highlights that no other examining physician or source who rendered

18

an opinion on Plaintiff’s functional capacity opined that Plaintiff is capable of

19

performing medium exertion. Id. at 9.

20

Defendant responds that Plaintiff’s focus on Dr. MacArthur’s diagnosis is a

21

red herring, because the ALJ based his RFC findings upon Plaintiff’s objective

22

findings and an evaluation of the extent of his symptoms, and not on a specific

23

diagnosis. Def. Memo. at 2-5.

24

The Court finds that the ALJ’s RFC assessment is not supported by

25

substantial evidence. As noted above, Plaintiff’s chief pain complaints arise from

26

the injury to his right shoulder, arm, elbow, wrist and hand. Yet in reaching his

27

opinion of Plaintiff’s functional capacity, Dr. MacArthur only reviewed one

28

medical report and that report, an x-ray of the lumbar spine -- a different area of
10

1

Plaintiff’s body from where his chief pain complaints stem -- undercuts Dr.

2

MacArthur’s assessment of Plaintiff’s functional capacity. The sparseness of the

3

medical record reviewed by Dr. MacArthur stands in contrast to the more detailed

4

and seemingly thorough review of Plaintiff’s medical records performed by other

5

medical sources, including Dr. Glancz.

6

Further, Dr. MacArthur’s opinion is the only opinion supporting the ALJ’s

7

RFC assessment. The ALJ rejected or gave little weight to the opinions of other

8

doctors or sources who opined that Plaintiff has a more restrictive RFC. While the

9

ALJ was not required to give significant weight to Dr. La’s and Dr. Mirzaians’

10

opinions as chiropractors, see 20 C.F.R. §§ 404.1513(a) & (d); Gomez v. Chater, 74

11

F.3d 967, 970-71 (9th Cir. 1996), superseded by regulation on other grounds as

12

stated in Boyd v. Colvin, 524 Fed. App’x 334 (9th Cir. 2013) (opinions from “other

13

sources” given less weight than “acceptable medical sources”), the functional

14

capacity assessment of Dr. Glancz, which the ALJ gave little weight, is the result of

15

clinical findings and a more thorough review of Plaintiff’s medical records. While

16

Dr. MacArthur’s opinion is based on his clinical findings, it appears that Dr.

17

MacArthur did not review any of the medical records related to Plaintiff’s right

18

upper extremity pain. On this record, the Court cannot find substantial evidence to

19

support the ALJ’s RFC assessment.

20

D. Remand is Appropriate

21

The Court has discretion to decide whether to remand for further proceedings

22

or order an immediate award of benefits. Harman v. Apfel, 211 F.3d 1172, 1175-78

23

(9th Cir. 2000). Under the credit-as-true rule, the court should remand for an award

24

of benefits if three conditions are met: (1) the record is fully developed and further

25

administrative proceedings would serve no useful purpose; (2) the ALJ has failed to

26

provide legally sufficient reasons for rejecting evidence, be it claimant testimony or

27

///

28

///
11

1

medical opinion; and (3) if such evidence were credited as true the ALJ would have

2

to find the claimant disabled. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir.

3

2014).

4

The Court finds that the record is not fully developed with respect to the

5

issue of Plaintiff’s RFC assessment and that further administrative proceedings

6

would be useful to allow the ALJ the opportunity to develop the record.3

7

V.

8

CONCLUSION

9

IT IS ORDERED that Judgment shall be entered REVERSING the decision

10

of the Commissioner denying benefits, and REMANDING the matter for further

11

proceedings consistent with this Order.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this

12
13

Order and the Judgment on counsel for both parties

14
15

DATED: December 30, 2015
ROZELLA A. OLIVER
UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20

NOTICE
THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW,
LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE.

21
22
23
24
25
26
27
28

3

Because the Court has determined that remand is appropriate, it need not reach the
issue whether Plaintiff is disabled under the Medical-Vocational Guidelines (the
“Grids”). However, the Court notes that the Commissioner’s factual claim that
Plaintiff can communicate in English because “at the hearing, he appeared without
an interpreter” (Def. Memo. at 6) is unsupported by the record. The transcript of
the hearing before the ALJ shows that Plaintiff used the services of an interpreter.
AR 42 (“The oath was administered to the interpreter.”). The record also contains
additional information showing that Plaintiff is non-English speaking and requires
the assistance of a Spanish interpreter. See, e.g., id. at 245, 256, 787.
12