Julio Fuentes v. Commissioner of Social Security Administration

Filing 18

MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. The Commissioner's decision is reversed and the case is remanded for further administrative proceedings consistent with this memorandum of decision. See document for further details. (yb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 13 14 15 16 JULIO FUENTES, ) ) Plaintiff, ) ) v. ) ) COMMISSIONER OF THE SOCIAL ) SECURITY ADMINISTRATION, ) ) Defendant. ) _____________________________________) Case No. SACV 11-1960 AJW MEMORANDUM OF DECISION 17 Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the 18 Social Security Administration (the “Commissioner”), denying plaintiff’s application for disability insurance 19 benefits. The parties have filed a Joint Stipulation (“JS”) setting forth their contentions with respect to each 20 disputed issue. 21 Administrative Proceedings 22 The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. 23 [See JS 2]. In a November 12, 2010 written hearing decision that constitutes the final decision of the 24 Commissioner, an administrative law judge (“ALJ”) found that plaintiff has the severe impairment of 25 degenerative disc disease of the lumbar spine. [Administrative Record (“AR”) 11]. The ALJ further found 26 that plaintiff retained the residual functional capacity (“RFC”) to perform a full range of light work. [AR 27 11]. 28 1 Standard of Review 2 The Commissioner’s denial of benefits should be disturbed only if it is not supported by substantial 3 evidence or is based on legal error. Stout v. Comm’r, Social Sec.Admin., 454 F.3d 1050, 1054 (9th Cir. 4 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). “Substantial evidence” means “more than 5 a mere scintilla, but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 6 2005). “It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 7 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks omitted). The court is 8 required to review the record as a whole and to consider evidence detracting from the decision as well as 9 evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); 10 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). “Where the evidence is susceptible to more than 11 one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 12 Thomas, 278 F.3d at 954 (citing Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 13 1999)). 14 Discussion 15 Treating source opinion 16 Plaintiff contends that the ALJ erred in failing to consider the opinion of his treating orthopedist, 17 Mark Brown, M.D. [JS 2-3, 6-8]. 18 Plaintiff saw Dr. Brown at the Orthopaedic Medical Group of Santa Ana, Inc. in Tustin, California 19 from December 2000 through June 15, 2005, and in August 2007. [AR 183-198, 200-243, 280-307]. Dr. 20 Brown summarized the background of plaintiff’s injuries in various reports through the years. [See, e.g., 21 AR 223-231, 281-283]. Plaintiff reported that while working for Quicksilver, he injured his back on March 22 18, 1998, September 9, 1999, October 13, 1999, and February 1, 2000 by pulling a pallet jack or by lifting 23 heavy boxes. [AR 224]. Plaintiff said that he was terminated from Quicksilver in July 2000 for reasons 24 unrelated to his back injuries. [AR 225]. 25 Plaintiff was referred to Dr. Brown in December 2000 in connection with a workers’ compensation 26 claim. At plaintiff’s initial examination on December 4, 2000, Dr. Brown concluded that plaintiff had 27 “[l]umbar spine strain/sprain, rule out nerve root impingement.” [AR 241]. He considered plaintiff 28 2 1 “temporarily totally disabled”1 and ordered an MRI. [AR 225, 241-242]. 2 On January 2, 2001, the MRI revealed moderate spinal stenosis at L4-5 with anterior and posterior 3 indentation on the thecal sac, and mild relative stenosis at L2-3. [AR 180-181, 225]. The MRI also revealed 4 a three to four millimeter disc protrusion at L2-3, and a moderate thecal sac indentation at L4-5 related to 5 a four millimeter posterior disc protrusion. [AR 180-181, 225]. 6 Progress reports indicate that Dr. Brown then saw plaintiff and instructed him to remain off work 7 on January 15, 2001 [AR 197], February 19, 2001 [AR 195], and March 26, 2001 [AR 193]. On April 27, 8 2001, Dr. Brown reviewed plaintiff’s medical records and concluded that he “should remain off of work, 9 and is considered to be Temporarily Totally Disabled.” [AR 234]. Dr. Brown instructed plaintiff to return 10 for a follow-up visit three days later. [AR 234]. Plaintiff returned on April 30, 2001 and reported increased 11 pain. [AR 191]. Dr. Brown again instructed him to remain off work until June 6, 2001. [AR 191]. 12 Upon examination on June 6, 2001, Dr. Brown noted that plaintiff had normal heel-to-toe gait 13 without limping, and that he was not wearing a back support. [AR 226]. However, there was tenderness 14 over the midline lumbosacral area and over L5-S1 bilaterally, and he concluded that plaintiff’s low back 15 pain complaints appeared consistent with the findings in the MRI study. [AR 225-227]. Dr. Brown 16 diagnosed plaintiff with lumbar spine strain/sprain, and a “3-4 mm disc bulge at L2-3, causing moderate 17 right neural foraminal stenosis and a 4 mm disc bulge at L4-5, causing moderate canal stenosis.” [AR 227]. 18 Because plaintiff continued to have substantial pain and his condition seemed to have plateaued in response 19 20 21 22 23 24 25 26 27 1 Under California workers’ compensation law, “the term ‘temporarily totally disabled’ means that an individual is ‘totally incapacitated’ and ‘unable to earn any income during the period when he is recovering from the effects of the injury.’” Iatridis v. Astrue, 501 F.Supp.2d 1267, 1277 (C.D. Cal. 2007) (quoting Booth v. Barnhart, 181 F.Supp.2d 1099, 1103 n.2 (C.D. Cal. 2002); Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600, 605 (9th Cir.1996); Herrera v. Workmen's Comp. Appeals Bd., 71 Cal.2d 254, 257 (1969)); see also Robinson v. Workers' Comp. Appeals Bd., 194 Cal.App.3d 784, 792, 239 Cal.Rptr. 841 (1987) (“The period of temporary total disability is that period when the employee is totally incapacitated for work and during which he may reasonably be expected to be cured or materially improved with proper medical attention[,] or until his condition becomes permanent and stationary.”) (internal quotation marks and citations omitted). 28 3 1 to treatment, Dr. Brown rated plaintiff’s disability status as “permanent and stationary.”2 [AR 228]. Dr. 2 Brown also indicated that plaintiff was precluded from “heavy lifting and repetitive bending and stooping” 3 and “prolonged weightbearing activities.” [AR 229]. 4 Dr. Brown continued to see plaintiff, and instructed plaintiff to remain off work and maintained his 5 “permanent and stationary” disability status on July 2, 2001 [AR 189, 290], August 13, 2001 [AR 187, 292], 6 October 25 & 29, 2002 [AR 208-210, 217, 220, 296-298], January 15, 2003 [AR 205], and April 12, 2004 7 [AR 202, 302]. A June 15, 2005 progress report indicates that Dr. Brown saw plaintiff again for his 8 persistent low back pain. [AR 185, 304]. His objective findings were that plaintiff’s lumbar spine remained 9 tender at L5-S1 and noted various flexion restrictions. [AR 304]. He prescribed plaintiff pain medication. 10 [AR 304]. An August 13, 2007 progress report indicates that Dr. Brown saw plaintiff again for increased 11 pain in his low back. [AR 183-184, 306]. Dr. Brown again noted tenderness in the lumbar spine at L4-5 12 and L5-S1 and prescribed pain medication. [AR 306-307].3 13 During the October 27, 2010 hearing, the ALJ asked the vocational expert (“VE”) whether a 14 hypothetical person who was able to perform light work4 could perform any of plaintiff’s past work. The 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 “Permanent and stationary” is a term of art relevant to California workers’ compensation law. Viramontes v. Astrue, 2010 WL 3212861, at *7 n.5 (E.D. Cal. Aug. 12, 2010). “A disability is considered ‘permanent and stationary’ for California workers' compensation purposes ‘after the employee has reached maximum medical improvement or his or her condition has been stationary for a reasonable period of time.’” Viramontes, 2010 WL 3212861, at *7 n.5 (quoting Jenkins v. Astrue, 628 F.Supp.2d 1140, 1145 n.2 (C.D. Cal. 2009)); see Gangwish v. Workers' Comp. App. Bd., 89 Cal.App.4th 1284, 1290 n. 7 (2001) (citing Cal. Code Regs., tit. 8, § 10152). 3 Plaintiff subsequently received treatment from two other orthopedic surgeons who filed workers’ compensation reports. Dr. Israel Rotterman concluded that plaintiff was temporarily totally disabled from June 30, 2009 to March 9, 2010 [AR 311-327], and Dr. Jack Piasecki concluded that plaintiff should remain off work due to his permanent and stationary status between April 2010 and August 4, 2010. [AR 308-320, 329-333]. 4 “Light work” involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds. The full range of light work requires standing or walking, off and on, for a total of approximately six hours of an eight-hour workday. Sitting may occur intermittently during the remaining time. In addition, occasional bending from the waist is required to lift and carry objects. See 20 C.F.R. §§ 404.1567(b), 416.967(b); Social Security Ruling (“SSR”) 85-15, 1985 WL 56857, at *6-*7; SSR 83-10, 1983 WL 31251, at *5-*6; SSR 83-14, 1983 WL 31254, at *4-*5. 4 1 VE stated that such a person could perform plaintiff’s prior assembly position. [AR 37]. Plaintiff’s counsel 2 asked the VE to assume that the same hypothetical person could perform the lifting and carrying 3 requirements of light work, but would be precluded from “prolonged weight-bearing, which would be 4 standing or walking,” as indicated in Dr. Brown’s reports. [AR 38]. The VE testified that such a person 5 would not be able to perform any of plaintiff’s past work. [AR 38]. 6 The ALJ summarized the medical evidence in his decision, including parts of Dr. Brown’s medical 7 reports and progress records. [AR 12-13]. The ALJ found that plaintiff’s medically determinable 8 impairment could reasonably be expected to cause the alleged symptoms, but discounted their severity 9 because he found that plaintiff’s statements were not wholly credible. [AR 13]. The ALJ found that 10 plaintiff retained the RFC for “the full range of light work,” in that he could “lift twenty pounds occasionally 11 and ten pounds frequently, stand and walk six hours of an eight-hour workday, sit six hours of an eight-hour 12 workday with normal breaks and occasional stooping . . .” [AR 11 (citing 20 C.F.R. § 404.1567(b))]. 13 A treating physician’s opinion is not binding on the Commissioner with respect to the existence of 14 an impairment or the ultimate issue of disability. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 15 2001). However, a treating physician’s medical opinion as to the nature and severity of an individual’s 16 impairment is entitled to controlling weight when that opinion is well-supported and not inconsistent with 17 other substantial evidence in the record. Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001); 18 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 19 416.927(d)(2); Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *1-*2. Even when not entitled 20 to controlling weight, “treating source medical opinions are still entitled to deference and must be weighed” 21 in light of (1) the length of the treatment relationship; (2) the frequency of examination; (3) the nature and 22 extent of the treatment relationship; (4) the supportability of the diagnosis; (5) consistency with other 23 evidence in the record; and (6) the area of specialization. Edlund, 253 F.3d at 1157 & n.6 (quoting SSR 96- 24 2p and citing 20 C.F.R. § 404.1527); Holohan, 246 F.3d at 1202. 2001); see 20 C.F.R. §§ 404.1527(d)(2), 25 If a treating source opinion is uncontroverted, the ALJ must provide clear and convincing reasons, 26 supported by substantial evidence in the record, for rejecting it. If contradicted by that of another doctor, 27 a treating or examining source opinion may be rejected for specific and legitimate reasons that are based 28 on substantial evidence in the record. Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 5 1 2004); Tonapetyan, 242 F.3d at 1148-1149; Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995). 2 The Commissioner has pointed to no opinion that conflicts with Dr. Brown’s assessment, and there 3 does not appear to be any conflicting report or opinion in the record. As the uncontroverted opinion of a 4 treating physician and specialist in the relevant field of orthopedics, Dr. Brown’s opinion is entitled to 5 controlling weight, and the ALJ must provide clear and convincing reasons for rejecting it. 6 The ALJ did not do so. The ALJ summarized one of Dr. Brown’s reports but did not provide any 7 reasons, let alone clear and convincing reasons, for rejecting his opinion. Although the ALJ noted that “Dr. 8 Brown said the claimant remained permanent and stationary,” the ALJ did not explain the significance of 9 this conclusion for purposes for purposes of the social security disability evaluation, nor did he explain how 10 he interpreted or weighed Dr. Brown’s opinions that plaintiff was “temporarily totally disabled” or Dr. 11 Brown’s workers’ compensation disability ratings. [AR 12]. While workers’ compensation ratings are not 12 controlling in disability cases decided under the Social Security Act, the ALJ must consider workers’ 13 compensation medical opinions and must “translate” workers’ compensation terms of art in order to 14 accurately assess the implications of those opinions for the social security disability determination. See 15 Booth v. Barnhart, 181 F.Supp.2d 1099, 1105-1109 (C.D. Cal. 2002); see also Desrosiers v. Sec’y of Health 16 & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); Coria v. Heckler, 750 F.2d 245, 247-248 (3d 17 Cir.1984). 18 The Commissioner points out that there are long gaps in Dr. Brown’s treatment of plaintiff, that 19 plaintiff was retraining to become an assembler, and that plaintiff used Tylenol to treat his symptoms. [JS 20 4-5]. The Commissioner also attempts to translate worker’s compensation law to social security law for the 21 ALJ. [JS 5]. The Commissioner’s attempts to salvage the decision fail because this court is required “to 22 review the ALJ’s decision based on the reasoning and factual findings offered by the ALJ—not post hoc 23 rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm’r, Soc. 24 Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009); see Stout, 454 F.3d at 1054 (stating that the court is 25 “constrained to review the reasons the ALJ asserts” for the denial of benefits and “cannot affirm the decision 26 of an agency on a ground that the agency did not invoke in making its decision”) (quoting Connett v. 27 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001)). 28 The Commissioner also contends that any error was harmless because the ALJ’s RFC finding did 6 1 not materially differ from Dr. Brown’s opinion. [JS 5-6]. That contention fails to address plaintiff’s 2 argument that Dr. Brown’s uncontroverted opinion, coupled with the VE’s testimony under the hypothetical 3 based on Dr. Brown’s restrictions, warrants the conclusion that plaintiff is disabled. [JS 3; AR 38]. The 4 Commissioner asserts that there is no indication that the VE understood worker’s compensation terms, but 5 there is no indication that she did not. The ALJ called her as an expert witness, relied on her testimony in 6 other respects, and gave no suggestion that he considered any part of her testimony unreliable. [AR 13-14, 7 37-38]. 8 The ALJ failed to provide clear and convincing reasons, supported by substantial evidence in the 9 record, for rejecting Dr. Brown’s opinion. See Batson, 359 F.3d at 1195. Therefore, the ALJ committed 10 reversible legal error. 11 Remedy 12 The choice whether to reverse and remand for further administrative proceedings, or to reverse and 13 simply award benefits, is within the discretion of the court. See Harman v. Apfel, 211 F.3d 1172, 1178 (9th 14 Cir.) (holding that the district court’s decision whether to remand for further proceedings or payment of 15 benefits is discretionary and is subject to review for abuse of discretion), cert. denied, 531 U.S. 1038 16 (2000). The Ninth Circuit has adopted the “Smolen test” to determine whether evidence should be credited 17 and the case remanded for an award of benefits: 18 (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) 19 there are no outstanding issues that must be resolved before a determination of disability can 20 be made, and (3) it is clear from the record that the ALJ would be required to find the 21 claimant disabled were such evidence credited. 22 Harman, 211 F.3d at 1178 (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). Where the 23 Smolen test is satisfied with respect to the evidence in question, “then remand for determination and 24 payment of benefits is warranted regardless of whether the ALJ might have articulated a justification for 25 rejecting” the improperly discredited evidence. Harman, 211 F.3d at 1179; Varney v. Sec’y of Health & 26 Human Servs., 859 F.2d 1396, 1400-1401 (9th Cir. 1988). 27 The appropriate remedy in this case is a remand for further administrative proceedings because the 28 it is not clear from the record that the ALJ would be required to award benefits if the ALJ properly weighed 7 1 the medical opinion evidence and considered it in conjunction with the VE’s testimony, and because the date 2 of onset and duration of any period of disability are outstanding issues that remain to be resolved. 3 Furthermore, the ALJ cited Dr. Brown’s examination findings in evaluating plaintiff’s credibility. [AR 13]. 4 A proper assessment of Dr. Brown’s records may affect the evaluation of plaintiff’s credibility and 5 ultimately the RFC, issues plaintiff raises here. [JS 9-12, 20-21]. On remand, the ALJ shall conduct a 6 supplemental hearing and issue a new decision that applies the correct legal principles and includes a 7 complete evaluation of the medical evidence and testimony of record. See Bunnell v. Barnhart, 336 F.3d 8 1112, 1115-1116 (9th Cir. 2003) (applying the Smolen test to hold that while the ALJ did not properly reject 9 the opinions of the treating physicians or the claimant’s subjective complaints and lay witness testimony, 10 several “outstanding issues” remain to be resolved, including whether, according to a vocational expert, 11 there was alternative work the claimant could perform).5 Conclusion 12 For the reasons stated above, the Commissioner's decision is reversed, and the case is remanded 13 14 for further administrative proceedings consistent with this memorandum of decision. 15 16 IT IS SO ORDERED. 17 18 January 7, 2013 19 _________________________ ANDREW J. WISTRICH United States Magistrate Judge 20 21 22 23 24 25 26 27 28 5 This disposition makes it unnecessary to consider plaintiff’s remaining contentions. 8

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