Martin v. Astrue

Filing 17

ORDER by Magistrate Judge Bernard Zimmerman granting in part and denying in part 15 Motion for Summary Judgment; denying 16 Motion for Summary Judgment (bzsec, COURT STAFF) (Filed on 10/4/2011)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT MARTIN, Plaintiff(s), 12 v. 13 14 MICHAEL J. ASTRUE, Defendant(s). 15 ) ) ) ) ) ) ) ) ) ) No. C10-4994 BZ ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT 16 17 Pursuant to 42 U.S.C. § 405(g), Robert Martin appeals 18 from a final decision by the Commissioner of Social Security 19 which affirmed the Administrative Law Judge’s (ALJ) order 20 denying his claim for Social Security disability benefits.1 21 See Administrative Record (AR) 16-27. 22 summary judgment asks me to reverse the ALJ’s decision and 23 either award him benefits or remand this matter for further 24 proceedings before the ALJ. 25 filed a cross motion for summary judgment arguing that the Plaintiff’s motion for Docket No. 15. Defendant has 26 27 28 1 The parties have consented to the Court’s jurisdiction for all proceedings, including entry of final judgment under 28 U.S.C. § 636(c). 1 1 ALJ’s decision should be upheld. 2 reasons explained below, plaintiff’s motion is GRANTED IN PART 3 and this matter is REMANDED to the ALJ for further 4 administrative action consistent with this Order. 5 Defendant’s cross motion for summary judgment is DENIED. 6 Docket No. 16. For the Plaintiff’s claim for benefits asserted that he had been 7 disabled since November 17, 2006. 8 five-step process for evaluating a Social Security claim,2 the 9 ALJ first found that plaintiff had not performed substantial Following the standard 10 gainful activity since the alleged onset date. 11 step 2, the ALJ determined that plaintiff suffered from 12 obesity and degenerative disc disease of the lumbar and 13 cervical spines.3 14 problems for most of his adult life, including several 15 surgical procedures and epidural injections. 16 ALJ found that these impairments did not meet or equal any 17 impairment set out in the Listing of Impairments.4 AR 18. AR 18. At Plaintiff has a history of back At step 3, the AR 19-20. 18 2 See 20 C.F.R. § 404.1520. 19 3 20 21 22 23 24 25 Plaintiff also claimed that he suffered from other ailments, such as carpal tunnel syndrome and neck pain. AR 20. The ALJ, however, did not consider these ailments past step 2 because they did not meet the durational requirements (12 months) for disabilities under the Social Security Act. AR 16, 20. Moreover, these ailments did not arise until after the date that plaintiff was last insured which was December 31, 2007. AR 16, 20. Plaintiff has not challenged this decision. Nor has he challenged the ALJ’s finding that his obesity did not prevent him from doing light work. AR 20. Accordingly, this Order only addresses plaintiff’s argument that the ALJ erred when he concluded that plaintiff was not disabled by his degenerative disc disease. 26 4 27 28 The Commissioner has acknowledged that certain impairments are so severe that they preclude substantial gainful activity. These impairments are set out in the Listing of Impairments, 20 C.F.R. Part 404, Subpt. P, App. 1. A 2 1 At step 4, the ALJ analyzed plaintiff’s medical history, 2 including the residual functional capacity (RFC) evaluations 3 conducted by various doctors, and adopted the opinion of Dr. 4 Michael Gurvey, the impartial medical expert who testified by 5 telephone at the administrative hearing. 6 reviewing plaintiff’s medical file, Dr. Gurvey concluded that 7 plaintiff could perform light exertional level work, with 8 certain exceptions, because he could sit, stand, and walk six 9 hours out of an eight hour work day if he took breaks. 10 Based on this RFC evaluation, and the testimony of the 11 vocational expert, the ALJ determined that plaintiff was not 12 disabled since he was capable of performing his past relevant 13 work as an inventory clerk, land surveyor, and communication 14 technician. AR 20-26. After AR 25. AR 26. 15 The Commissioner’s decision to deny benefits will be 16 disturbed only if it is not supported by substantial evidence 17 or is based on legal error. 18 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 19 2004). 20 error by failing to provide clear and convincing reasons for 21 discrediting plaintiff’s testimony about the severity of his 22 back pain. 23 on this issue as follows: 24 25 26 42 U.S.C. § 405(g); Batson v. Plaintiff first argues that the ALJ committed legal The Ninth Circuit has explained the applicable law To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an 27 28 claimant whose impairment or combination of impairments meet or equal the “Listings” is presumptively disabled. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 underlying impairment “which could reasonably be expected to produce the pain or other symptoms alleged.” Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)(en banc)(internal quotation marks omitted). The claimant, however, “need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). “Thus, the ALJ may not reject subjective symptom testimony ... simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged.” Id.; see also Reddick, 157 F.3d at 722 (“[T]he Commissioner may not discredit the claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence.”). Second, if the claimant meets this first test, and there is no evidence of malingering, “the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen, 80 F.3d at 1281; see also Robbins, 466 F.3d at 883 (“[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each.”). 16 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 17 2007). 18 that plaintiff’s underlying impairment of degenerative disc 19 disease was supported by objective evidence. 20 agree that there is no evidence of malingering. 21 only issue is whether the ALJ provided clear and convincing 22 reasons for discrediting plaintiff’s pain testimony. 23 There is no dispute that the ALJ properly determined I find that the ALJ failed to do this. The parties also Thus, the In his decision, 24 the ALJ concluded that plaintiff’s “medically determinable 25 impairments could reasonably be expected to produce the 26 alleged symptoms, but that the claimant’s statements 27 concerning the intensity, persistence and limiting effects of 28 these symptoms are generally credible, but only to the extent 4 1 consistent with the decision.” 2 explained why he discounted the parts of plaintiff’s testimony 3 which were not consistent with the ALJ’s decision, and, if 4 this testimony was credited, how plaintiff would be able to 5 work on a daily basis. 6 AR 25. The ALJ never Plaintiff testified that his back problems caused him See AR 62-65. He 7 severe pain and prevented him from working. 8 explained that even while taking pain medication, such as 9 Vicodin and Norco, doing light work would “knock [his] back 10 out” and “lay [him] up” from a few days up to a few weeks. 11 63-65 (when the ALJ asked plaintiff how many days of the week 12 he would be out of commission, plaintiff replied that it was 13 three or four days per week); see also AR 71-72; 178-79 (in 14 plaintiff’s application for disability benefits, he wrote that 15 after walking for about 30 minutes, he would experience sharp, 16 burning pain in his back). As explained in Lingenfelter, it 17 was legal error for the ALJ not to explain specifically why 18 he did not believe plaintiff’s subjective pain testimony. 19 F.3d at 1035-36; see also Greger v. Barnhart, 464 F.3d 968, 20 972 (9th Cir. 2007)(“In making a credibility determination, 21 the ALJ must specifically identify what testimony is credible 22 and what testimony undermines the claimant's complaints”) 23 (citations and quotations omitted)). 24 AR 504 Defendant points out that the ALJ’s decision included a 25 review of his medical history in which the ALJ alluded to 26 several reasons that may help to explain why he did not 27 believe the entirety of plaintiff’s testimony. 28 the ALJ explained that there was “scant objective evidence to 5 For instance, 1 support a conclusion of disability.” See AR 25. In reviewing 2 plaintiff’s medical history, the ALJ also noted that there 3 were instances where plaintiff reported to his doctors that 4 treatment had reduced his pain. 5 statements in the ALJ’s decision are specific enough to 6 constitute clear and convincing reasons for why the ALJ 7 discounted plaintiff’s subjective pain testimony. 8 and find that the ALJ’s decision does not meet the Ninth 9 Circuit’s requirement to “specifically identify what testimony According to defendant, these I disagree 10 is credible and what testimony undermines” plaintiff’s 11 complaints. 12 Shalala, 12 F.3d 915, 918 (9th Cir. 1993)(“If the ALJ wished 13 to reject [the claimant’s] pain testimony, he was required to 14 point to specific facts in the record which demonstrate that 15 [the claimant] is in less pain than she claims”). 16 Furthermore, a finding that there is no objective evidence to 17 substantiate plaintiff’s claim “cannot form the sole basis for 18 discounting” subjective symptom testimony. 19 Astrue, 2010 WL 5175051 at *3 (C.D. Cal. 2010)(quoting Burch 20 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)); see also 21 Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991). 22 Greger, 464 F.3d at 635; see also Dodrill v. Renteria v. Plaintiff also challenges the ALJ’s decision to give more 23 weight to the opinion of the nonexamining medical expert, Dr. 24 Gurvey, than to the examining doctor, Dr. Todd Nguyen. 25 order to discount the opinion of an examining physician in 26 favor of the opinion of a nonexamining medical advisor, the 27 ALJ must set forth specific, legitimate reasons that are 28 supported by substantial evidence in the record.” 6 “In Nguyen v. 1 Chater, 100 F.3d 1462, 1466 (9th Cir. 1996). 2 the ALJ explained that out of all the medical opinions about 3 plaintiff’s condition, he gave “the greatest weight” to the 4 opinion of Dr. Gurvey because his assessment was 5 “comprehensive, and well explained, supported by objective 6 findings and he was the only medical source of record able to 7 review and consider the entire evidentiary file and to hear 8 the testimony of the claimant, which I found was generally 9 credible.”5 AR 26. In his decision, Defendant argues that this short 10 explanation for adopting Dr. Gurvey’s opinion constitutes 11 specific and legitimate reasons which are supported by 12 substantial evidence in the record. 13 essentially giving more weight to Dr. Gurvey because he was 14 the last doctor to evaluate plaintiff’s claims and therefore 15 had the benefit of having plaintiff’s “entire evidentiary 16 file,” including hearing plaintiff’s testimony, to perform a 17 “comprehensive” review. 18 doctors that evaluated plaintiff, should not be discounted for 19 the sole reason that they reviewed plaintiff’s file during an 20 earlier time period. 21 Nguyen personally examined plaintiff while Dr. Gurvey only 22 reviewed plaintiff’s medical file. 23 that the ALJ’s explanation that Dr. Gurvey’s opinion is 24 supported by objective findings meets the specificity standard 25 required by the Ninth Circuit. 26 (9th Cir. 1996). I disagree. The ALJ is Dr. Nguyen, and the other state This is particularly true since Dr. Moreover, I do not find See Nguyen, 100 F.3d at 1466. Accordingly, on remand, the ALJ shall 27 5 28 Yet, since he testified by telephone, Dr. Gurvey never observed the plaintiff. 7 1 provide specific and legitimate reasons for adopting Dr. 2 Gurvey’s opinion, including the specific objective findings 3 that support Dr. Gurvey’s opinion and are inconsistent with 4 Dr. Nguyen’s opinion. 5 For the foregoing reasons, IT IS HEREBY ORDERED that 6 plaintiff’s motion for summary judgment is GRANTED IN PART and 7 defendant’s cross motion for summary judgment is DENIED. 8 matter is REMANDED for the ALJ to provide clear and convincing 9 reasons for discrediting plaintiff’s testimony about his This 10 subjective pain. The ALJ must identify such reasons or accept 11 the plaintiff’s testimony. 12 ALJ shall also either adopt Dr. Nguyen’s opinion or provide 13 specific and legitimate reasons for giving more weight to Dr. 14 Gurvey’s opinion. 15 submit a proposed judgment consistent with this Order by 16 October 11, 2011. 17 Dated: October 4, 2011 See Dodrill, 12 F.3d at 418. IT IS FURTHER ORDERED that defendant shall 18 19 The Bernard Zimmerman United States Magistrate Judge 20 G:\BZALL\-BZCASES\MARTIN V. ASTRUE\ORDER RE CROSS MOTIONS 2bzwpd.wpd 21 22 23 24 25 26 27 28 8

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