Cheryl E. Rose v. Carolyn W. Colvin

Filing 14

MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. For the reasons stated above, the decision of the Social Security Commissioner is REVERSED and the action is REMANDED for further proceedings consistent with this opinion. (nbo)

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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 CHERYL E. ROSE, Plaintiff, 12 13 14 15 16 v. CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant. ) Case No. SACV 14-0155-DFM ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) 17 18 Plaintiff Cheryl Rose (“Plaintiff”) appeals the decision of the 19 Administrative Law Judge (“ALJ”) denying her application for Social Security 20 disability insurance benefits. The Court concludes that the ALJ erred when she 21 evaluated the opinions of Plaintiff’s chiropractor and treating physicians. The 22 ALJ’s decision is therefore reversed and this matter is remanded for further 23 proceedings consistent with this opinion. 24 I. 25 FACTUAL AND PROCEDURAL BACKGROUND 26 Plaintiff filed her application for benefits on August 27, 2010, alleging 27 disability beginning April 30, 2006. The ALJ found that Plaintiff had the 28 severe impairments of fibromyalgia, bilateral carpal tunnel syndrome, 1 degenerative disc disease of the cervical spine, headaches, early peripheral 2 neuropathy, anxiety, and depression. Administrative Record (“AR”) 17. 3 Relying heavily on the opinion of the testifying medical expert (“ME”), the 4 ALJ concluded that Plaintiff retained the residual functional capacity to 5 perform a reduced range of light work. AR 20-25. The ALJ then concluded 6 that Plaintiff was not disabled because there were significant jobs available in 7 the regional and national economy that she could still perform despite her 8 impairments. AR 26-27. 9 II. 10 ISSUES PRESENTED 11 The parties dispute whether the ALJ erred in: (1) failing to properly 12 evaluate the reports and opinions of Plaintiff’s treating chiropractor; and (2) 13 failing to give controlling weight to the opinions of Plaintiff’s treating 14 physicians. See Joint Stipulation (“JS”) at 4. 15 III. 16 STANDARD OF REVIEW 17 Under 42 U.S.C. § 405(g), a district court may review the 18 Commissioner’s decision to deny benefits. The ALJ’s findings and decision 19 should be upheld if they are free from legal error and are supported by 20 substantial evidence based on the record as a whole. 42 U.S.C. § 405(g); 21 Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 22 742, 746 (9th Cir. 2007). Substantial evidence means such relevant evidence as 23 a reasonable person might accept as adequate to support a conclusion. 24 Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 25 Cir. 2007). It is more than a scintilla, but less than a preponderance. 26 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 27 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports 28 a finding, the reviewing court “must review the administrative record as a 2 1 whole, weighing both the evidence that supports and the evidence that detracts 2 from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 3 (9th Cir. 1996). “If the evidence can reasonably support either affirming or 4 reversing,” the reviewing court “may not substitute its judgment” for that of 5 the Commissioner. Id. at 720-21. 6 IV. 7 DISCUSSION 8 9 10 A. The ALJ Failed to Properly Consider the Opinion of Plaintiff’s Chiropractor Plaintiff contends that the ALJ erred in failing to properly consider the 11 reports and opinions of her treating chiropractor, Dr. Robert S. Renfro. JS at 5- 12 9. Dr. Renfro had been treating Plaintiff’s joint and muscle pain with massage 13 and adjustment since 2006. AR 527. He provided various reports which 14 detailed his treatment of Plaintiff and in which he opined that Plaintiff was 15 disabled due to her pain. See, e.g., AR 151, 285, 493. The ALJ rejected Dr. 16 Renfro’s opinions as follows: 17 Social Security Ruling (SSR) 06-03p clarifies how we consider 18 opinions from sources who are not “acceptable medical sources,” 19 such as chiropractors, on the issue of disability. Dr. Renfro is not a 20 licensed physician, a licensed neurologist, a licensed orthopedist, 21 or a licensed pain management specialist. Therefore, he is not an 22 acceptable medical source, and his reports and opinion must be 23 accorded minimal evidentiary weight. 24 25 AR 25. Under the Social Security Regulations, a chiropractor is not an 26 “acceptable medical source.” 20 C.F.R. § 404.1513(a). Rather, a chiropractor 27 is included in the list of medical professionals defined as “other sources.” 20 28 C.F.R. § 404.1513(d)(1). Although their opinions may be used to determine the 3 1 severity of a claimant’s impairments and how those impairments affect the 2 ability to work, 20 C.F.R. § 404.1513(d), such professionals are not considered 3 to be the equivalent of treating physicians. See Jamerson v. Chater, 112 F.3d 4 1064, 1067 (9th Cir. 1997). To reject the testimony of such sources, the ALJ 5 must only give “‘reasons germane to each witness for doing so.’” Molina v. 6 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting Turner v. Comm’r of 7 Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)). 8 9 Here, the ALJ rejected Dr. Renfro’s opinion solely because he is a chiropractor. Although acceptable medical sources are considered “the most 10 qualified medical professionals” under the Social Security regulations, the 11 Administration has nevertheless determined that “it may be appropriate to give 12 more weight to the opinion of a medical source who is not an ‘acceptable 13 medical source’ if he or she has seen the individual more often than the 14 treating source and has provided better supporting evidence and a better 15 explanation for his or her opinion.” Social Security Ruling (“SSR”) 06-03p, 16 2006 WL 2329939, at *5 (Aug. 9, 2006).1 Accordingly, the ALJ is not 17 permitted to reject Dr. Renfro’s opinion solely on the basis that, as a 18 chiropractor, he is not a medical source. See, e.g., Johnson v. Colvin, No. 12- 19 1149, 2013 WL 3119567, at *5 (D. Or. June 18, 2013); Knorr v. Astrue, No. 20 11-7324, 2013 WL 1927053, at *8 (E.D. Pa. Feb. 26, 2013) (concluding that 21 ALJ’s “blanket dismissal” of chiropractor’s assessment was not appropriate 22 where chiropractor treated claimant over a multi-year period and addressed 23 “key issues” of impairment severity and functional effects). 24 25 26 27 28 1 Social Security Rulings are issued to clarify the agency’s regulations and policy. Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991). Although they are not published in the Federal Register and do not have the force of law, the Ninth Circuit has held that this Court must give deference to the agency’s interpretation of its regulations. Id. 4 Accordingly, upon remand, if the ALJ wishes to reject Dr. Renfro’s 1 2 opinion, she may do so, but only for reasons “germane” to Dr. Renfro, not 3 solely on the basis that he is not an acceptable medical source. 4 B. The ALJ Failed to Properly Assess the Opinions of Plaintiff’s 5 Treating Physicians 6 Plaintiff contends that the ALJ erred in failing to give controlling weight 7 to the opinion of her treating rheumatologist, Dr. Anthony Bohan. JS at 14-25. 8 In a medical report dated April 7, 2010, and a Physical Capacities Evaluation 9 dated May 2, 2012, Dr. Bohan provided information regarding the effect of 10 Plaintiff’s fibromyalgia, inflammatory arthritis, and other conditions on her 11 ability to perform various work-related functions. AR 393-400, 486-87. Dr. 12 Bohan’s statements largely concur with those of Plaintiff’s previous treating 13 rheumatologist, Dr. Joan Campagna. See AR 320-21. Dr. Bohan opined that 14 Plaintiff would be able to sit for up to three hours out of an eight-hour 15 workday, stand and walk for up to one hour out of an eight-hour workday, and 16 lift up to eight pounds occasionally, but could not use her hands for repetitive 17 simple grasping or fine manipulation and could reach only occasionally. AR 18 487. 19 As noted above, the ALJ gave controlling weight to the opinion of the 20 nonexamining, testifying ME, Dr. Samuel Landau. AR 25. The ALJ rejected 21 Dr. Campagna’s and Dr. Bohan’s opinions as follows: 22 The undersigned finds inconsistencies in the medical evidence and 23 does not accord controlling evidentiary weight to Dr. Campagna 24 or Dr. Bohan, the treating physicians’ opinions. Specifically, the 25 undersigned agrees with Dr. Landau with regard to Dr. Campagna 26 and Dr. Bohan interspersing the diagnoses of rheumatoid arthritis, 27 inflammatory arthritis, and fibromyalgia syndrome. Then there is 28 the matter of the claimant’s breast implant settlement. As required 5 1 of her Dow Corning Breast Implant Settlement Fund, Dr. Bohan 2 definitively stated that the claimant did not have Classic 3 Rheumatoid Arthritis. On July 6, 2010, her laboratory testing 4 included a negative RA factor and a negative CCP antibody. Dr. 5 Bohan also stated that osteoarthritis had been excluded from her 6 MCP’s, PIP’s, wrist, right shoulder and right knee joints. Further, 7 the undersigned notes that none of the objective medical evidence 8 showed diagnostic proof that the claimant exhibited the requisite 9 number of the 18 trigger points of fibromyalgia. As Dr. Landau 10 noted, there was no objective medical evidence to support Dr. 11 Campagna and Dr. Bohan’s opinions that the claimant’s 12 impairment met a listing. 13 14 AR 24 (citations omitted). Three types of physicians may offer opinions in Social Security cases: 15 those who directly treated the plaintiff, those who examined but did not treat 16 the plaintiff, and those who did not treat or examine the plaintiff. See 20 17 C.F.R. § 404.1527(c)(2); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). A 18 treating physician’s opinion is generally entitled to more weight than that of an 19 examining physician, which is generally entitled to more weight than that of a 20 non-examining physician. Lester, 81 F.3d at 830. Thus, when a treating 21 doctor’s opinion is not contradicted by another doctor, it may be rejected only 22 for clear and convincing reasons. Id. When a treating doctor’s opinion is 23 contradicted by another doctor, the ALJ must provide specific, legitimate 24 reasons based on substantial evidence in the record for rejecting the treating 25 doctor’s opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Lester, 81 26 F.3d at 830-31. However, “[t]he ALJ need not accept the opinion of any 27 physician, including a treating physician, if that opinion is brief, conclusory, 28 and inadequately supported by clinical findings.” Thomas v. Barnhart, 278 6 1 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v. Halter, 242 F.3d 1144, 2 1149 (9th Cir. 2001). 3 The Court finds that the ALJ did not provide specific and legitimate 4 reasons for rejecting the opinions of Plaintiff’s treating physicians. First, the 5 ALJ rejected their opinions because they allegedly “intersperse[ed]” the 6 diagnoses of rheumatoid arthritis, inflammatory arthritis, and fibromyalgia. 7 AR 25. However, Drs. Campagna and Bohan, in fact, ruled out rheumatoid 8 arthritis after reviewing Plaintiff’s negative blood test results, concluding that 9 Plaintiff suffered from inflammatory arthritis and fibromyalgia. See AR 392, 10 406.2 The ALJ does not point to any medical evidence to demonstrate that it is 11 impossible for a person to have both conditions simultaneously. As noted by 12 Plaintiff, a simple search of Social Security opinions reveals multiple cases in 13 which a claimant has been diagnosed with both inflammatory arthritis and 14 fibromyalgia and in which the ALJ found both impairments to be severe. See, 15 e.g., Rowland v. Colvin, No. 13-0007, 2014 WL 2215884, at *1 (W.D. Va. 16 May 29, 2014); Jones v. Colvin, No. 12-0379, 2014 WL 991800, at *9 (D. Neb. 17 Mar. 13, 2014); Lucky v. Comm’r of Soc. Sec., No. 12-1888, 2013 WL 18 2209708, at *6 (N.D. Ohio May 20, 2013). 19 Second, the ALJ’s statement that the objective medical evidence does 20 not show that Plaintiff “exhibited the requisite number of the 18 trigger points 21 of fibromyalgia” is not supported by the record. Both Drs. Campagna and 22 Bohan found that Plaintiff exhibited at least 11 of the 18 tender points.3 See 23 24 25 26 27 28 2 Thus, the fact that Dr. Bohan “definitively stated that [Plaintiff] did not have Classic Rheumatoid Arthritis,” AR 25, as required for Plaintiff to receive compensation from the breast implant settlement fund, is not inconsistent with his diagnoses of inflammatory arthritis and fibromyalgia. 3 Although there are no laboratory tests which establish the presence or severity of fibromyalgia, it is recognized as a medically determinable 7 1 AR 318, 406, 407, 416-17, 421, 426, 463, 465, 495. Moreover, in stating that 2 there was no “objective medical evidence” documenting that Plaintiff had the 3 requisite number of tender points to diagnose fibromyalgia, the ALJ is 4 “effectively requiring ‘objective’ evidence for a disease that eludes such 5 measurement.” Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) 6 (internal quotation marks and alteration omitted). It is also unclear why the 7 ALJ would have determined that Plaintiff’s fibromyalgia was a severe 8 impairment at step two of the sequential evaluation if Plaintiff had not 9 established the requisite number of trigger points. 10 Finally, the fact that Dr. Bohan and Dr. Campagna both opined that 11 Plaintiff met the requirements of Listing 14.09 (Inflammatory Arthritis) is not a 12 specific and legitimate reason for rejecting the entirety of their opinions. While 13 it is true that a treating physician’s opinion on the matter of ultimate disability 14 or, in this case, whether Plaintiff meets or equals a Listing is not entitled to 15 special weight, “a treating physician’s medical opinions are generally given 16 more weight.” Boardman v. Astrue, 286 F. App’x 397, 399 (9th Cir. 2008) 17 (holding that ALJ erred in rejecting treating physician’s opinion based on fact 18 that physician also expressed opinion on ultimate issue of disability) (citing 20 19 C.F.R. § 404.1527(d)(2)). A medical opinion “‘reflect[s] judgments about the 20 nature and severity of [a claimant’s] impairment(s), including [a claimant’s] 21 symptoms, diagnosis and prognosis, what [a claimant] can still do despite 22 impairment(s), and [a claimant’s] physical or mental restrictions.” Id. (quoting 23 impairment under the Social Security Act if there are medical signs and laboratory findings that are established by the medical record. See SSR 12-2p, 2012 WL 3104869, at *2-*3 (July 25, 2012); see also Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). The American College of Rheumatology defines the disorder in patients as a history of widespread pain in all four quadrants of the body and at least 11 of the 18 specified tender points on digital palpitation. See SSR 12-2p, 2012 WL 3104869, at *2-*3; Sarchet, 78 F.3d at 306. 24 25 26 27 28 8 1 20 C.F.R. § 404.1527(a)(2)). In this case, beyond finding that Plaintiff met 2 Listing 14.09, Drs. Campagna and Bohan also gave opinions regarding the 3 nature, severity, and prognosis for Plaintiff’s inflammatory arthritis. The fact 4 that Plaintiff’s treating physicians also rendered an opinion regarding the 5 ultimate issue of disability is not a legitimate basis for rejecting those opinions 6 out of hand. 7 C. 8 9 A Remand for Further Proceedings Is Appropriate Where, as here, the Court finds that the ALJ improperly discredited medical testimony, the Court has discretion as to whether to remand for 10 further proceedings. See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 11 2000). Where no useful purpose would be served by further administrative 12 proceedings, or where the record has been fully developed, it is appropriate 13 under the so-called “credit-as-true” rule to exercise this discretion to direct an 14 immediate award of benefits. Id. at 1179 (noting that “the decision of whether 15 to remand for further proceedings turns upon the likely utility of such 16 proceedings”); see also Garrison v. Colvin, --- F.3d ---, 2014 WL 3397218, at 17 *20-*21 (9th Cir. July 14, 2014) (noting that credit-as-true rule applies to 18 medical opinion testimony). 19 Under this credit-as-true framework, the Court must apply the following 20 three-part standard, each part of which must be satisfied before the Court 21 remands to the ALJ with instructions to award benefits: “(1) the record has 22 been fully developed and further administrative proceedings would serve no 23 useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for 24 rejecting evidence, whether claimant testimony or medical opinion; and (3) if 25 the improperly discredited evidence were credited as true, the ALJ would be 26 required to find the claimant disabled on remand.” Garrison, 2014 WL 27 3397218, at *20. Where, however, the ALJ’s findings are so “insufficient” that 28 the Court cannot determine whether the rejected testimony should be credited9 1 as-true, the Court has “some flexibility” in applying the credit-as-true rule. 2 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003); see also Garrison, 2014 3 WL 3397218, at *22 (noting that Connett established that the credit-as-true 4 rule may not be dispositive in all cases). The Ninth Circuit recently clarified 5 that this flexibility should be exercised “when the record as a whole creates 6 serious doubt as to whether the claimant is, in fact, disabled within the 7 meaning of the Social Security Act.” Garrison, 2014 WL 3397218, at *21. 8 Here, the Court finds that the record as a whole in fact creates such 9 serious doubt. Therefore, the Court concludes that a remand is appropriate for 10 the ALJ to consider Plaintiff’s limitations in light of the opinions of her 11 chiropractor and her treating physicians, and to determine whether those 12 limitations mandate a finding of disability. 13 V. 14 CONCLUSION 15 For the reasons stated above, the decision of the Social Security 16 Commissioner is REVERSED and the action is REMANDED for further 17 proceedings consistent with this opinion. 18 19 Dated: August 11, 2014 20 DOUGLAS F. McCORMICK ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 21 22 23 24 25 26 27 28 10

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