Opinion
NO. CV 12-9644-E
07-24-2013
JORGE SENDA AGUILERA, Plaintiff, v. CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION
AND ORDER OF REMAND
Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.
PROCEEDINGS
Plaintiff filed a complaint on November 14, 2012, seeking review of the Commissioner's denial of social security benefits. The parties filed a consent to proceed before a United States Magistrate Judge on December 18, 2012. Plaintiff filed a motion for summary judgment on June 3, 2013. Defendant filed a motion for summary judgment on June 6, 2013. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed November 14, 2012.
BACKGROUND
Plaintiff filed an application for benefits on November 13, 2009, asserting disability since April 30, 2008 (Administrative Record ("A.R.") 140-41). Plaintiff alleged that injuries to his "lower waist, shoulder [and] left hand" limited his ability to work (A.R. 160).
An Administrative Law Judge ("ALJ") found that, although Plaintiff suffered from severe degenerative disc disease of the lumbar spine and status left rotator cuff repair, Plaintiff retained the residual functional capacity to perform a limited range of light work (A.R. 31, 34 (citing 20 C.F.R. 404.1567(b)). The ALJ found that Plaintiff's limitations precluded the performance of Plaintiff's past relevant work, but not the performance of certain other jobs (A.R. 37 (adopting vocational expert testimony at A.R. 86-87)).
Specifically, the ALJ found that Plaintiff could:
. . . stand, walk, or sit for 6 hours in an 8 hour workday; can occasionally climb ramps and stairs, balance, stoop, kneel, or crouch; can never climb ladders, ropes or scaffolds or crawl; can occasionally reach overhead with the left upper extremity; and must avoid concentrated exposure to vibrations and cold temperatures.(A.R. 34 (adopting non-examining medical expert's testimony at A.R. 78 and adding limitations for vibrations and cold temperatures)).
Plaintiff sought review from the Appeals Council, submitting letters from Plaintiff's representative and some additional medical records (A.R. 199-200, 203-05 (letters); A.R. 357-66 (additional medical records)). The Appeals Council considered these additional materials, but denied review (A.R. 1-6).
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).
Where, as here, the Appeals Council considered additional material but denied review, the additional material becomes part of the Administrative Record for purposes of the Court's analysis. See Brewes v. Commissioner, 682 F.3d 1157, 1163 (9th Cir. 2012) ("[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence."; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1232 (2011) (courts may consider evidence presented for the first time to the Appeals Council "to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error"); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) ("the Appeals Council considered this information and it became part of the record we are required to review as a whole"); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).
DISCUSSION
I. The ALJ Erred in the Evaluation of Evidence from Plaintiff's Examining Physicians.
As discussed below, the ALJ failed properly to evaluate the examining physicians' opinions regarding Plaintiff's limitations.
A. Summary of the Available Medical Evidence
Following Plaintiff's work-related injury, Plaintiff received chiropractic treatment from Arbi Mirzaians DC (A.R. 162; see also A.R. 222. Mirzaians reportedly referred Plaintiff for MRI and CT scans of his lower back (A.R. 163). The record before the ALJ contained no regular treatment notes or reports from Mirzaians.
A 60-pound hanging flowerpot reportedly fell from a height of 10 feet, striking Plaintiff on the right side of his back and ribs as Plaintiff was bent over. See A.R. 248.
As discussed below, Plaintiff did submit to the Appeals Council a "Primary Treating Physician's Re-Evaluation Narrative Report and Request for Authorization" by Mirzaians dated December 8, 2011 (A.R. 363-66).
As part of Plaintiff's workers compensation claim, Plaintiff was evaluated by two orthopedic surgeons. Dr. Stepan Kasimian evaluated Plaintiff on three occasions and prepared reports. See A.R. 233-37, 242-44, 247-54 ("Spinal Consultation Re-Evaluation Report" and "Supplementary Report" dated October 13, 2009, "Spinal Consultation Re-Evaluation Report" dated September 1, 2009, and "Orthopedic Surgical Consultation Report" dated June 9, 2009). Plaintiff initially complained of left shoulder and low back pain, but later complained of leg pain as well (A.R. 234, 243, 249). On examination, Dr. Kasimian found pain aggravated by flexion and extension of Plaintiff's lumbar spine (A.R. 252). Plaintiff also had decreased motor power strength in his left lower extremities (A.R. 252). Available x-rays and MRI studies showed spondylosis at L5-S1, a 7mm disc herniation (paracentral and left) at L5-S1, and a 3mm disc herniation at L4-5 with mild stenosis (A.R. 253). Dr. Kasimian diagnosed Plaintiff with L5-S1 herniated nucleus pulposus and left L5 radiculopathy, indicated that Plaintiff was a surgical candidate, and requested that Plaintiff return in six weeks for re-evaluation (A.R. 253).
It appears that the imaging studies included in the record are incomplete. Dr. Kasimian referenced x-rays taken the day after Plaintiff's injury (i.e., on May 1, 2008), and a June 9, 2009 x-ray that are not in the record. Compare A.R. 249 and 253 (Dr. Kasimian's notes) with A.R. 255-57 (the only imaging reports included in the record).
On Plaintiff's second visit, Dr. Kasimian stated that Plaintiff had failed conservative treatment and was a candidate for L4-5 and L5-S1 decompression and fusion (A.R. 243-44). Plaintiff reported difficulty walking for prolonged periods of time (A.R. 243). Available radiographs and MRIs assertedly showed Grade 1 spondylolisthesis with 4-mm of motion on flexion-extension films, and foraminal stenosis at L5 with lateral recess stenosis at L4-5 (A.R. 243). Dr. Kasimian requested authorization for surgery (A.R. 244).
On Plaintiff's third visit, Dr. Kasimian stated that Plaintiff wanted to move forward with surgery (A.R. 234). On examination, Plaintiff had reduced motor power strength in both his left and right lower extremities (A.R. 234). Dr. Kasimian diagnosed Plaintiff with herniated nucleus pulposus at L4-5 and L5-S1, degenerative disc disease at L4-5 and L5-S1, chronic low back pain, and chronic radiculopathy (A.R. 234-35). Dr. Kasimian again requested authorization for surgery (A.R. 235).
Authorization for the surgery did not follow. Plaintiff reportedly did not meet the guidelines for surgery because there supposedly was no documentation of at least one imaging report finding nerve root compression, lateral disc rupture, or lateral recess stenosis, with a diagnosis for which fusion is indicated at the corresponding levels (A.R. 213-16).
Meanwhile, orthopedic surgeon Dr. Arthur Garfinkel examined Plaintiff and prepared an Orthopaedic Qualified Medical Evaluation dated September 21, 2009 (A.R. 221-32). Dr. Garfinkel reviewed, inter alia, Plaintiff's relevant medical records from Mirzaians and Dr. Kasimian's initial report (A.R. 221, 227-28). At the time, Plaintiff had undergone physical therapy and epidural steroid injections (A.R. 228).
To Dr. Garfinkel, Plaintiff reported left shoulder and low back pain, radiating down both legs, with more pain on the left side (A.R. 223). Plaintiff was taking naproxen for pain (A.R. 224). Examination revealed: (1) a somewhat stiff gait; (2) full range of motion for the cervical and thoracic spine without tenderness; (3) full range of motion in the lumbosacral spine with pain at the end range of motion, and muscle tenderness to palpation; (4) positive straight leg raising in both seated and supine position; (5) full range of motion for the left shoulder with pain at the end range of motion in all planes and positive impingement sign; and (6) no evidence of atrophy in the upper or lower extremities (A.R. 224-26).
Dr. Garfinkel opined that Plaintiff had a strain of the lumbosacral spine, lumbar radiculopathy, herniated nucleus pulposus of the lumbosacral spine, sprain and strain of the left shoulder, a torn left rotator cuff, and impingement syndrome of the left shoulder (A.R. 229). Plaintiff then was a candidate for lumbosacral and left shoulder surgery (A.R. 229). Dr. Garfinkel opined that Plaintiff could work with the following restrictions: (1) lifting no more than 15 pounds on a frequent and occasional basis; (2) standing or walking no more than four hours in an eight hour period, and standing no more than 30 minutes at one time; (3) no overhead reaching with his left upper extremity; and (4) no climbing, crawling, kneeling, squatting, bending, stooping, or balancing (A.R. 229-31).
On December 11, 2009, Dr. Daniel Silver performed surgery on Plaintiff's left shoulder to repair the rotator cuff. Dr. Silver saw Plaintiff for follow-up visits through at least January 25, 2010 (A.R. 307-56). Six weeks after the surgery, Plaintiff's wounds were healed and he was able to move his shoulder, although with limited range of motion (A.R. 308). Plaintiff reportedly still had shoulder and back pain that radiated to his right leg (A.R. 308). Dr. Silver diagnosed Plaintiff with left shoulder rotator cuff tear, acromioclavicular joint severe arthrosis, lumbar sprain/strain (rule out herniated nucleus pulposus), insomnia, depression, postoperative bladder dysfunction, and status post arthroscopic subacromial decompression, partial claviculectomy and left shoulder rotator cuff repair (A.R. 308). Plaintiff was referred for physical therapy (A.R. 308).
Plaintiff underwent an orthopedic examination by Dr. Payam Moazzaz on April 6, 2010 (A.R. 274-79). Dr. Moazzaz reviewed no medical records (A.R. 274). Plaintiff complained of left shoulder and low back pain (A.R. 274). Plaintiff was observed to have difficulty squatting, tenderness to palpation in the paraspinal musculature and diminished range of motion, but negative straight leg raising (A.R. 276). Plaintiff also had decreased range of motion in his left shoulder (A.R. 276). Dr. Moazzaz opined that Plaintiff had degenerative disc disease of the lumbar spine and was status post left shoulder rotator cuff repair based on the incision to Plaintiff's shoulder (A.R. 278). Dr. Moazzaz opined that Plaintiff was capable of performing medium work (lifting and carrying 50 pounds occasionally and 25 pounds frequently), standing and walking six hours and sitting six hours out of an eight hour day, with frequent climbing, stooping, kneeling and crouching, and frequent overhead activities on the left side (A.R. 278).
Non-examining state agency review physician K. Mauro completed a Physical Residual Functional Capacity Assessment for Plaintiff dated April 21, 2010 (A.R. 280-84). Dr. Mauro opined that Plaintiff was capable of performing light work, with preclusion from climbing ladders, ropes, or scaffolds, with only occasional kneeling and crawling, with limited left upper extremity reaching, and with avoidance of extreme cold and vibration. Id. Dr. Mauro stated that a light residual functional capacity, rather than a medium capacity, better accommodated Plaintiff's combination of impairments in view of the lumbar spine imaging (which Dr. Moazzaz did not review) (A.R. 298). A later non-examining reviewing physician, Dr. Vaghaiwalla, agreed with Dr. Mauro's assessment. See A.R. 300-02.
Dr. Arthur Brovender, the non-examining medical expert, reviewed the available medical records and testified from Dr. Moazzaz's report that Plaintiff had decreased range of motion in his lumbosacral spine and left shoulder, and negative straight leg raising, with normal motor, neurological and sensory examinations (A.R. 72, 76-77). Dr. Brovender did not summarize or discuss any of the other physicians' opinions or findings. Dr. Brovender opined that Plaintiff would be able to perform a limited range of light work, with all of the limitations the ALJ found to exist except the environmental limitations. Compare A.R. 78 with 34 (ALJ's residual functional capacity assessment).
B. Evidence Reviewed by the Appeals Council
After the ALJ's adverse decision, Plaintiff submitted a "Physical Capacities Evaluation" form from Dr. Thomas Grogan dated September 28, 2011 (A.R. 357; see also A.R. 4 (Appeals Council's exhibit list)). Dr. Grogan opined that Plaintiff was capable of sitting four hours, standing three hours, and walking two hours in an eight hour day, and lifting and carrying up to five pounds occasionally (A.R. 357). Plaintiff also submitted a report from Mirzaians dated December 8, 2011, wherein Mirzaians stated that Plaintiff had undergone low back surgery (A.R. 363). Plaintiff did not submit any records from that surgery, but did indicate in a letter to the Appeals Council that the surgery occurred on November 8, 2011 (A.R. 203-05).
C. Analysis
As summarized above, the ALJ found Plaintiff capable of performing a limited range of light work. In reaching this conclusion, the ALJ purportedly gave "moderate" weight to the opinions of consultative examiner Dr. Moazzaz, state agency review physician Dr. Mauro, and non-examining medical expert Dr. Brovender (A.R. 34-36). The ALJ reportedly gave "little" weight to the opinions of consultative examiner Dr. Garfinkel because Dr. Garfinkel's opinions "[were] developed as part of [Plaintiff's] worker's compensation case" and "[were] based a single examination" (A.R. 36).
From the residual functional capacity assessment the ALJ adopted, it appears that the ALJ gave the greatest weight to the non-examining physician opinions of Drs. Mauro and Brovender Compare A.R. 34 (ALJ's assessment) with A.R. 78 and 280-84 (opinions).
The Administration must "consider" and "evaluate" every medical opinion of record. 20 C.F.R. § 404.1527(b) and (c); see SSR 96-8p. In this consideration and evaluation, an ALJ "cannot reject [medical] evidence for no reason or the wrong reason." Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981); see Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (ALJ may not make his or her own lay medical assessment); see also Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1887) ("ALJ cannot arbitrarily substitute his [or her] own judgment for competent medical opinion").
In the present case, the ALJ erred in the evaluation of Dr. Garfinkel's opinions. The only two stated reasons for discounting Dr. Garfinkel's opinions (the "worker's compensation" rationale and the "single examination" rationale) are demonstrably arbitrary and/or legally infirm.
With regard to the "worker's compensation" rationale, the Ninth Circuit has made clear that "in the absence of other evidence to undermine the credibility of a medical report, the purpose for which [a medical] report was obtained does not provide a legitimate basis for rejecting it." Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1988) (mere fact that opinions were provided for disability carrier at the request of counsel is not a legitimate basis for evaluating the reliability of the report); see Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. Cal. 2002) ("the ALJ may not disregard a physician's medical opinion simply because it was initially elicited in a state worker's compensation proceeding . . ."). Here, the ALJ identified no other evidence to undermine the credibility of Dr. Garfinkel's report, and no such evidence is apparent in the available record.
The "sole examination" rationale is equally unsustainable. The fact that Dr. Garfinkel examined Plaintiff only once plainly does not provide a non-arbitrary basis for discounting Dr. Garfinkel's opinion in favor of the opinions of Dr. Moazzaz (who also examined Plaintiff only once and who did not review any medical records), or the opinions of Drs. Mauro and Brovender (who did not examine Plaintiff at all). Without further consideration and explanation, substantial evidence does not support the ALJ's rejection of Dr. Garfinkel's opinion in favor of the opinions of Drs. Moazzaz, Mauro, and Brovender.
The only reason the ALJ stated for purporting to accord "moderate weight" to Dr. Moazzaz's opinions is equally arbitrary and similarly fails to distinguish Dr. Moazzaz's opinions from those of Dr. Garfinkel. The ALJ "assigned moderate weight to Dr. Moazzaz's opinion, as it is based on professional observation and testing" (A.R. 35). Of course, Dr. Garfinkel's opinions also were based on, inter alia, "professional observation and testing" (A.R. 221-32).
The Court observes that, despite the ALJ purportedly having given "moderate weight" to Dr. Moazzaz's opinions, the ALJ adopted a residual functional capacity more akin to the capacity assessed by the non-examining medical sources. In the absence of record evidence to support the non-examining opinions, however, such assessments could not by themselves constitute substantial evidence to support the ALJ's decision. See Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995).
II. Remand is Appropriate.
Remand is appropriate because the circumstances of this case suggest that further administrative review could remedy the ALJ's errors. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances).
There are outstanding issues that must be resolved before a proper disability determination can be made in the present case. For this reason, the Ninth Circuit's decision in Harman v. Apfel, 211 F.3d 1172 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ("Harman") also does not compel a reversal for the immediate payment of benefits. In Harman, the Ninth Circuit stated that improperly rejected medical opinion evidence should be credited and an immediate award of benefits directed where "(1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited." Harman at 1178 (citations and quotations omitted). Assuming, arguendo, the Harman holding survives the Supreme Court's decision in INS v. Ventura, 537 U.S. 12 (2002), the Harman holding does not direct reversal of the present case. In addition to the outstanding issues that must be resolved, it is not clear that the ALJ would be required to find Plaintiff disabled for the entire period of claimed disability even if Dr. Garfinkel's opinions were fully credited.
CONCLUSION
For all of the foregoing reasons, Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.
The Court has not reached any of the other issues raised by Plaintiff.
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LET JUDGMENT BE ENTERED ACCORDINGLY.
___________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE