Alcazar v. Commissioner of Social Security

Filing 31

ORDER signed by Magistrate Judge Kendall J. Newman on 4/4/2017 ORDERING that Plaintiff's 20 motion for summary judgment is GRANTED IN PART. The Commissioner's 27 cross-motion for summary judgment is DENIED. The final decision of the Commissioner is REVERSED, and the case is REMANDED for further administrative proceedings consistent with this order pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of Court shall close this case. CASE CLOSED. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RIGOBERTO GALVAN ALCAZAR 12 Plaintiff, 13 14 15 No. 2:15-cv-2203-KJN v. ORDER COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 18 Plaintiff Rigoberto Galvan Alcazar seeks judicial review of a final decision by the 19 Commissioner of Social Security (“Commissioner”) denying plaintiff’s application for Disability 20 Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”).1 In his motion for 21 summary judgment, plaintiff principally contends that the Commissioner erred by finding that 22 plaintiff was not disabled from August 14, 2008, his alleged disability onset date, through March 23 31, 2013, plaintiff’s date last insured. (ECF No. 20.) The Commissioner opposed plaintiff’s 24 motion and filed a cross-motion for summary judgment. (ECF No. 27.) Thereafter, plaintiff filed 25 a reply brief. (ECF No. 30.) 26 27 28 1 This action was referred to the undersigned pursuant to Local Rule 302(c)(15), and both parties voluntarily consented to proceed before a United States Magistrate Judge for all purposes. (ECF Nos. 6, 9.) 1 After carefully considering the record and the parties’ briefing, the court GRANTS IN 1 2 PART plaintiff’s motion for summary judgment, DENIES the Commissioner’s cross-motion for 3 summary judgment, and REMANDS the action for further administrative proceedings consistent 4 with this order. 5 I. BACKGROUND 6 Plaintiff was born on December 26, 1963, has a sixth grade education, speaks Spanish and 7 only a little bit of English, and previously worked as a cement mason. (Administrative Transcript 8 (“AT”) 14, 17, 27-28, 36, 129, 152.)2 On September 12, 2012, plaintiff applied for DIB, alleging 9 that his disability began on August 14, 2008, and that he was disabled primarily due to lower back 10 pain. (AT 11, 129, 151, 157.) After plaintiff’s application was denied initially and on 11 reconsideration, plaintiff requested a hearing before an administrative law judge (“ALJ”), which 12 took place on January 13, 2014, and at which plaintiff, represented by an attorney, and a 13 vocational expert (“VE”) testified. (AT 11, 23-43.) The ALJ subsequently issued a decision 14 dated February 21, 2014, determining that plaintiff had not been under a disability, as defined in 15 the Act, from August 14, 2008, plaintiff’s alleged disability onset date, through March 31, 2013, 16 plaintiff’s date last insured. (AT 11-18.) The ALJ’s decision became the final decision of the 17 Commissioner when the Appeals Council denied plaintiff’s request for review on August 27, 18 2015. (AT 1-3.) Plaintiff then filed this action in federal district court on October 22, 2015, to 19 obtain judicial review of the Commissioner’s final decision. (ECF No. 1.) 20 II. ISSUES PRESENTED 21 On appeal, plaintiff raises the following issues: (1) whether the ALJ improperly rejected 22 the opinion of plaintiff’s chiropractor; (2) whether the ALJ’s finding of transferrable skills is not 23 properly supported by the record; and (3) whether plaintiff should be found disabled under the 24 Grids. 25 2 26 27 Because the parties are familiar with the factual background of this case, including plaintiff’s medical and mental health history, the court does not exhaustively relate those facts in this order. The facts related to plaintiff’s impairments and treatment will be addressed insofar as they are relevant to the issues presented by the parties’ respective motions. 28 2 1 III. LEGAL STANDARD The court reviews the Commissioner’s decision to determine whether (1) it is based on 2 3 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 4 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 5 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 6 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 7 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 8 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 9 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 10 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The 11 court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational 12 interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 13 IV. DISCUSSION Summary of the ALJ’s Findings 14 The ALJ evaluated plaintiff’s entitlement to DIB pursuant to the Commissioner’s standard 15 16 five-step analytical framework.3 As an initial matter, the ALJ determined that plaintiff met the 17 3 18 19 20 21 22 23 24 25 26 27 28 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program. 42 U.S.C. §§ 401 et seq. Supplemental Security Income is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Both provisions define disability, in part, as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 14042 (1987). The following summarizes the sequential evaluation: Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing her past relevant work? If so, the 3 1 insured status requirements of the Act for purposes of DIB through March 31, 2013. (AT 13.) At 2 the first step, the ALJ concluded that plaintiff had not engaged in substantial gainful activity from 3 August 14, 2008, his alleged disability onset date, through March 31, 2013, his date last insured. 4 (Id.) At step two, the ALJ found that plaintiff had the following severe impairment through the 5 date last insured: degenerative disc disease. (Id.) However, at step three, the ALJ determined 6 that, through the date last insured, plaintiff did not have an impairment or combination of 7 impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 8 404, Subpart P, Appendix 1. (Id.) 9 10 Before proceeding to step four, the ALJ assessed plaintiff’s residual functional capacity (“RFC”) as follows: 11 After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform a wide range of medium work as defined in 20 CFR 404.1567(c). The claimant is able to lift and carry 50 pounds occasionally, 25 pounds frequently, sit six hours, and stand and walk each for six hours during a normal eight hour workday. The claimant is able to frequently stoop. He has very limited ability to communicate in English. 12 13 14 15 16 17 (AT 13-14.) At step four, the ALJ determined that, through the date last insured, plaintiff was unable to 18 perform any past relevant work. (AT 17.) However, at step five, the ALJ found that, in light of 19 plaintiff’s age, education, work experience, transferable skills, and RFC, and based on the VE’s 20 testimony, there were jobs that existed in significant numbers in the national economy that 21 plaintiff could have performed through the date last insured. (Id.) Thus, the ALJ concluded that 22 claimant is not disabled. If not, proceed to step five. 23 24 25 26 27 Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 28 4 1 plaintiff had not been under a disability, as defined in the Act, from August 14, 2008, plaintiff’s 2 alleged disability onset date, through March 31, 2013, plaintiff’s date last insured. (AT 18.) Plaintiff’s Substantive Challenges to the Commissioner’s Determinations 3 4 Whether the ALJ improperly rejected the opinion of plaintiff’s chiropractor 5 As noted above, plaintiff argues that the ALJ improperly rejected the opinion of plaintiff’s 6 chiropractor, Dr. Antonio Soto. 7 The weight given to medical opinions depends in part on whether they are proffered by 8 treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 9 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking, 10 a treating physician’s opinion carries more weight than an examining physician’s opinion, and an 11 examining physician’s opinion carries more weight than a non-examining physician’s opinion. 12 Holohan, 246 F.3d at 1202. 13 To evaluate whether an ALJ properly rejected a medical opinion, in addition to 14 considering its source, the court considers whether (1) contradictory opinions are in the record; 15 and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a 16 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 17 F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be 18 rejected for “specific and legitimate” reasons. Id. at 830. While a treating professional’s opinion 19 generally is accorded superior weight, if it is contradicted by a supported examining 20 professional’s opinion (supported by different independent clinical findings), the ALJ may 21 resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes 22 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the 23 contradicted treating physician opinion, Edlund, 253 F.3d at 1157,4 except that the ALJ in any 24 event need not give it any weight if it is conclusory and supported by minimal clinical findings. 25 Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician’s conclusory, minimally 26 27 28 4 The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3) nature and extent of the treatment relationship; (4) supportability of diagnosis; (5) consistency; and (6) specialization. 20 C.F.R. § 404.1527. 5 1 supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non- 2 examining professional, by itself, is insufficient to reject the opinion of a treating or examining 3 professional. Lester, 81 F.3d at 831. 4 In this case, plaintiff injured his back at work on August 14, 2008, while lifting a 300 5 pound roll of metal wire mesh. (AT 197.) The record demonstrates that, although plaintiff 6 received treatment and consultations from various physicians following the accident, he was 7 treated fairly consistently by his chiropractor, Dr. Soto, over several years. On January 9, 2014, 8 Dr. Soto completed a form diagnosing plaintiff with lumbar disc extrusion, and opining inter alia 9 that plaintiff could only stand and walk for about 2 hours a day; sit for about 2 hours a day; could 10 never stoop or crouch; and would be absent from work more than four times per month. (AT 11 400-02.) Although, as the ALJ observed, a chiropractor is not an “acceptable medical source” 12 under the Commissioner’s regulations to establish whether a claimant has a medically 13 determinable impairment, Dr. Soto is nonetheless qualified to opine as to the severity of 14 plaintiff’s impairments and how they affect his ability to work. (AT 16.) See 20 C.F.R. § 15 404.1513(a), (d). 16 In giving little weight to Dr. Soto’s opinion, the ALJ substantially relied on the opinion of 17 consultative examiner Dr. Jonathan Schwartz, who examined plaintiff on January 26, 2013. (AT 18 16-17, 289-92.) Dr. Schwartz diagnosed plaintiff with lower back pain, likely secondary to strain 19 and degenerative disc disease, with possible lumbar radiculopathy; and opined that plaintiff could 20 stand and walk for up to 6 hours a day, sit without limitation, lift and carry 50 pounds 21 occasionally and 25 pounds frequently, and stoop frequently. (AT 292.) Ordinarily, because a 22 consultative examiner personally examines the claimant, his or her opinion would be substantial 23 evidence on which the ALJ is entitled to rely. However, in this case, the court notes that Dr. 24 Schwartz was not provided with plaintiff’s prior medical records—only a partial Social Security 25 Administration disability report. (AT 289.) 26 The regulations require that a consultative examiner be given any necessary background 27 information about the plaintiff’s condition. 20 C.F.R. § 404.1517. To be sure, in some cases, the 28 failure to provide prior records to a consultative examiner may be harmless when the record as a 6 1 whole is considered. However, the court cannot confidently draw such a conclusion here. The 2 record in this case contains fairly extensive treatment notes and clinical findings by Dr. Soto and 3 other providers, as well as objective imaging studies. By way of example, an October 1, 2008 4 MRI noted a disc protrusion at L4-5 on the left side compressing the exiting L3, L4, and 5 descending L5 nerve roots. (AT 385.) A subsequent MRI reviewed in July 2011 showed 6 degenerative disc disease at L4-5 and L5-S1 with no evidence of nerve root compression, and 7 with the previous large extruded disc herniation no longer present. (AT 382.) In a July 11, 2012 8 evaluation by orthopedic surgeon Dr. Jeffrey Holmes, who was an agreed medical evaluator in 9 plaintiff’s worker’s compensation case, Dr. Holmes found that plaintiff should be precluded from 10 lifting greater than 15 pounds at work as well as from repetitive bending and stooping. (AT 204.) 11 In light of the above, it was imperative for Dr. Schwartz to review plaintiff’s prior records in 12 order to render a meaningful opinion concerning plaintiff’s functional capacity. Therefore, the 13 court finds that the case should be remanded for a supplemental consultative examination, as 14 outlined below. 15 The court declines plaintiff’s invitation to remand the case for an award of benefits. 16 Generally, if the court finds that the ALJ’s decision was erroneous or not supported by substantial 17 evidence, the court must follow the “ordinary remand rule,” meaning that “the proper course, 18 except in rare circumstances, is to remand to the agency for additional investigation or 19 explanation.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). A 20 remand for an award of benefits is inappropriate where the record has not been fully developed or 21 there is a need to resolve conflicts, ambiguities, or other outstanding issues. Id. at 1101. 22 Here, although the court finds that Dr. Schwartz’s opinion does not amount to substantial 23 evidence for the reasons discussed above, the record contains significant ambiguities and other 24 evidence that at least arguably raises serious doubts as to plaintiff’s disability. For example, even 25 though Dr. Soto’s treatment notes are extensive, he provides very little rationale for the severe 26 limitations assessed in January 2014. Even assuming arguendo that plaintiff was disabled for a 27 certain period of time after the August 2008 work injury, the second July 2011 MRI appears to 28 show substantial improvement and casts doubt on plaintiff’s alleged continuing disability. 7 1 Additionally, in a follow-up November 29, 2012 letter, agreed medical evaluator Dr. Holmes 2 ambiguously suggested that the restrictions identified in his prior July 11, 2012 report, referenced 3 above, were “prophylactic restrictions, not necessarily functional limitations.” (AT 363.) 4 Another provider, neurosurgeon Dr. Karl Gregorius, after reviewing plaintiff’s second July 2011 5 MRI, opined that plaintiff does not need a surgical intervention. (AT 382.) Finally, some of 6 plaintiff’s activities, such as his working in the garden, going to the flea market, attending soccer 7 games, driving, and traveling to Mexico by car and/or plane about three times since his alleged 8 disability onset date, also appear to conflict with Dr. Soto’s severe limitations. (AT 14, 16, 30- 9 31, 285.) 10 Consequently, the court finds it appropriate to remand the action for further administrative 11 proceedings—more specifically, for a supplemental consultative examination by an appropriate 12 specialist who is provided full access to plaintiff’s prior medical records. The ALJ may also 13 further develop the record evidence, as deemed appropriate. Importantly, the court does not 14 instruct the ALJ to credit any particular medical opinion, and the court expresses no opinion 15 regarding how the evidence should ultimately be weighed, and any ambiguities or inconsistencies 16 resolved, on remand. The ALJ may find plaintiff disabled, find plaintiff disabled for only a 17 closed period of time, or may find plaintiff not disabled at all, provided that the decision is based 18 on proper legal standards and supported by substantial evidence in the record as a whole. 19 Other Issues In light of the court’s conclusion that the case should be remanded for a supplemental 20 21 consultative examination, which will likely necessitate re-weighing of the medical evidence, the 22 court declines to reach plaintiff’s remaining issues. On remand, the ALJ will have an opportunity 23 to reconsider those matters, if appropriate. 24 //// 25 //// 26 //// 27 //// 28 //// 8 1 V. CONCLUSION 2 For the foregoing reasons, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s motion for summary judgment (ECF No. 20) is GRANTED IN PART. 4 2. The Commissioner’s cross-motion for summary judgment (ECF No. 27) is 5 DENIED. 6 3. The final decision of the Commissioner is REVERSED, and the case is 7 REMANDED for further administrative proceedings consistent with this order pursuant to 8 sentence four of 42 U.S.C. § 405(g). 9 10 11 4. The Clerk of Court shall close this case. IT IS SO ORDERED. Dated: April 4, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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