Opinion
NO. CV 16-8714-E
07-21-2017
CLAUDIA JUANA MADRIGAL, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 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 22, 2016, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on January 9, 2017. ///
Plaintiff filed a motion for summary judgment on April 28, 2017. Defendant filed a motion for summary judgment on May 30, 2017. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed November 28, 2016.
BACKGROUND
On June 25, 2013, Plaintiff applied for disability insurance benefits and supplemental security income, alleging disability beginning December 22, 2011, when she was injured at work (Administrative Record ("A.R.") 158-72, 190, 256, 444). At the time of her injury, Plaintiff was pregnant (A.R. 256).
A Workers' Compensation orthopedist, Dr. Kevin Pelton of "Advanced Orthopedics," treated Plaintiff for radiating pain from February of 2012 through at least August of 2014 (A.R. 384-450, 467-71, 473-88). Dr. Pelton diagnosed a lumbosacral musculoligamentous sprain/strain, and a 4-millimeter disc bulge at L4-L5 and bilateral lower extremity radiculitis (A.R. 448, 467). Because Plaintiff was pregnant, Dr. Pelton initially treated Plaintiff with only physical therapy and topical pain medication (A.R. 448). After Plaintiff delivered her baby, Dr. Pelton ordered MRI studies but prescribed no pain medications because Plaintiff was breast feeding (A.R. 441). The MRI study of Plaintiff's lumbar spine from April of 2012 showed a 2-3 millimeter disc bulge at L4-5 without evidence of stenosis or neural foraminal narrowing, and "mild effacement" of the right exiting nerve root secondary to a 3-4 millimeter disc bulge at L5-S1 (A.R. 372-73; see also A.R. 378-79 (March, 2011 lumbar spine MRI showing bulges); A.R. 374-75 (September, 2010 cervical spine MRI showing a 1-2 millimeter disc bulge at C5-6 and C6-7 without evidence of stenosis or neural foraminal narrowing)). In July of 2012, Dr. Pelton stated that Plaintiff was "still unable to work," and Dr. Pelton indicated that, if physical therapy did not relieve Plaintiff's symptoms adequately, Plaintiff might require an epidural injection (A.R. 428). In August of 2012, Plaintiff was still breast feeding and so was restricted to using only Tylenol for her pain (A.R. 423). During Plaintiff's next five visits, Dr. Pelton recommended a trial of acupuncture and a TENS unit for Plaintiff's pain because Plaintiff's treatment options still were limited due to the breast feeding (A.R. 404, 408, 411, 414, 417). In April of 2013, Dr. Pelton prescribed 800 milligrams of Motrin and Soma for muscle spasms (A.R. 398). In August of 2013, Dr. Pelton stated that he was awaiting authorization for a consultation with a pain management specialist (A.R. 385). In July of 2014, Dr. Pelton stated that Plaintiff had not responded to conservative treatment so he was "formally requesting" authorization for a pain management consultation for consideration of epidural injections (A.R. 476). In August of 2014, authorization for a pain management consultation and consideration of lumbar epidural steroid injections reportedly was still pending (A.R. 474). Dr. Pelton opined that Plaintiff should remain off work, with any return to modified work occurring as permitted by a Qualified Medical Examiner's opinion (A.R. 477, 482).
Dr. Pelton noted the following findings on examinations: (1) spinal tenderness on palpation; (2) limited range of motion; (3) positive straight leg raising tests for back pain; and (4) sometimes radiating pain (A.R. 385, 390, 394, 398, 404, 408, 411, 414, 417, 428, 432, 436, 440, 467, 469, 480, 484; see also R.T. 423 (antalgic gait)).
Although Plaintiff reportedly saw a Qualified Medical Examiner ("QME") on March 11, 2014 (A.R. 480), and Dr. Pelton reportedly reviewed the QME's report (A.R. 478), the QME's report is not a part of the administrative record. According to Dr. Pelton, the QME stated that Plaintiff was "permanent and stationary" and should be afforded future medical care including pain management and epidural injections (A.R. 478).
On June 12, 2015, an Administrative Law Judge ("ALJ") rejected Dr. Pelton's opinions that Plaintiff was "temporary totally disabled" and "must remain off work" (A.R. 26). The ALJ stated:
The undersigned finds these conclusions have no probative value and rejects them. The term "temporarily totally disabled" and "permanent and stationary" are terms of art in workers' compensation law that are not determinative under the different criteria for a finding of disability pursuant to the Social Security Act. Therefore, a conclusion by a physician the claimant is "temporarily totally disabled" or that she must remain off work in the context of a workers' compensation case is not relevant with regard to the claimant's applications under the Social Security Act. The objective clinical and diagnostic evidence used by the claimant's physicians to come to those conclusions have been considered. This objective evidence is consistent with a determination that the claimant could do work subject to the residual functional capacity assessed herein.(A.R. 26).
The ALJ adopted a consultative examiner's opinion that Plaintiff retains the residual functional capacity to perform medium work (A.R. 24-26; see A.R. 459-64). Non-examining state agency physicians concurred with the consultative examiner's opinion (A.R. 55-69). The ALJ found that, with this capacity, Plaintiff could return to her past relevant work and also that Plaintiff could perform other jobs existing in significant numbers (A.R. 27-28 (adopting vocational expert testimony at A.R. 47-48)).
On October 7, 2016, the Appeals Council considered additional medical evidence but denied review (A.R. 1-5; see also A.R. 824-923).
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); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). 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, 1066 (9th Cir. 2006).
If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the
Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).
Where, as here, the Appeals Council considered additional evidence but denied review, the additional evidence becomes part of the record for purposes of the Court's analysis. See Brewes v. Commissioner, 682 F.3d at 1163 ("[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, 1231 (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"). /// /// ///
DISCUSSION
I. The ALJ Failed to State Legally Sufficient Reasons for Rejecting Dr. Pelton's Opinions.
The ALJ must "consider" and "evaluate" every medical opinion of record. See 20 C.F.R. § 404.1527(b) and (c) (applying to claims filed before March 27, 2017). 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). Nor can the ALJ make his or her own lay medical assessment. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (a hearing examiner not qualified as a medical expert should not make his or her own exploration and assessment of a claimant's medical condition) (citation omitted).
Under the law of the Ninth Circuit, the opinions of treating physicians command particular respect. "As a general rule, more weight should be given to the opinion of the treating source than to the opinion of doctors who do not treat the claimant." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citations omitted). A treating physician's conclusions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ("the ALJ must give sufficient weight to the subjective aspects of a doctor's opinion. . . . This is especially true when the opinion is that of a treating physician") (citation omitted); see also Orn v. Astrue, 495 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference owed to treating physicians' opinions). Even where the treating physician's opinions are contradicted, "if the ALJ wishes to disregard the opinion[s] of the treating physician he . . . must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at 762 ("The ALJ may disregard the treating physician's opinion, but only by setting forth specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence") (citation and quotations omitted).
Rejection of an uncontradicted opinion of a treating physician requires a statement of "clear and convincing" reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984).
Here, the ALJ apparently discounted Dr. Pelton's opinions because of the Workers' Compensation context in which Dr. Pelton rendered those opinions. However, the purpose for which a medical opinion is obtained "does not provide a legitimate basis for rejecting it." Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998); see Nash v. Colvin, 2016 WL 67677, at *7 (E.D. Cal. Jan. 5, 2016) ("the ALJ may not disregard a physician's medical opinion simply because it was initially elicited in a state workers' compensation proceeding . . .") (citations and quotations omitted); Casillas v. Colvin, 2015 WL 6553414, at *3 (C.D. Cal. Oct. 29, 2015) (same); Franco v. Astrue, 2012 WL 3638609, at *10 (C.D. Cal. Aug. 23, 2012) (same); Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. Cal. 2002) (same). By finding Dr. Pelton's opinions "not relevant," the ALJ erred. See id.; see also Brammer v. Colvin, 2015 WL 9484450, at *5 (C.D. Cal. Dec. 29, 2015) ("Although workers' compensation disability ratings are not controlling in Social Security cases, an ALJ must nevertheless evaluate medical opinions stated in workers' compensation terminology just as he would evaluate any other medical opinion.").
The ALJ's preference for the opinions of the consultative examiner and the state agency physicians cannot constitute a "specific, legitimate" reason for rejecting the opinions of Dr. Pelton. The contradiction of a treating physician's opinion by another physician's opinion triggers rather than satisfies the requirement of stating "specific, legitimate reasons." See, e.g., Valentine v. Commissioner, 574 F.3d 685, 692 (9th Cir. 2007); Orn v. Astrue, 495 F.3d at 631-33; Lester v. Chater, 81 F.3d at 830-31.
Defendant argues that the "objective clinical and diagnostic evidence on examination" was consistent with the residual functional capacity the consultative examiner assessed and the ALJ adopted. See Deft's Motion, p. 1. However, the consultative examiner evidently did not review any of the medical records (A.R. 459). The non-examining state agency physicians appear to have reviewed a few medical records, (A.R. 57, 64, 67), but apparently reviewed none of Dr. Pelton's records. See A.R. 51-53, 61-63 (summarizing evidence apparently reviewed and indicating that "Advanced Orthopedics" records had been requested). It is thus uncertain on the current record whether the "objective clinical and diagnostic evidence on examination" supports the ALJ's residual functional capacity assessment. No physician of record was in a position to opine whether the "objective clinical and diagnostic evidence on examination" from Dr. Pelton was consistent with the assessment. Neither the ALJ nor this Court has the requisite medical expertise so to opine.
Defendant also argues that the ALJ discounted Dr. Pelton's opinions because Dr. Pelton assertedly prescribed only conservative treatment. See Deft's Motion, p. 2. In the only paragraph of the ALJ's decision referencing Dr. Pelton, the ALJ did not mention conservative treatment as a reason to discount Dr. Pelton's opinions. See A.R. 26. The Court cannot affirm the ALJ's decision on a ground the ALJ did not specifically invoke. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001).
The ALJ did cite "routine and conservative" treatment as a reason to discount Plaintiff's credibility (A.R. 25-26). To the extent the ALJ also may have purported to rely on "conservative" treatment to reject Dr. Pelton's opinions, such reliance would not be legitimate under the circumstances of Plaintiff's treatment history. As indicated above, throughout much of Plaintiff's treatment with Dr. Pelton, Plaintiff was pregnant or breast feeding. These circumstances precluded the prescribing of narcotic pain medication. Later, Dr. Pelton repeatedly requested authorization for more aggressive pain management, including epidural injections, because Plaintiff had not responded well to conservative treatment. In any event, the Ninth Circuit recently has stated that "the failure of a treating physician to recommend a more aggressive course of treatment, absent more, is not a legitimate reason to discount the physician's subsequent medical opinion about the extent of disability." Trevizo v. Berryhill, ___ F.3d ___, 2017 WL 2925434, at *8 (9th Cir. 2017).
Similarly, the ALJ cited "the lack of aggressive treatment" as assertedly supporting the opinions of the non-treating physicians (A.R. 26).
For all these reasons, the ALJ erred by rejecting the opinions of the Dr. Pelton without stating legally sufficient reasons for doing so.
II. The Court is Unable to Conclude that the ALJ's Error was Harmless; Remand is Appropriate.
An error "is harmless where it is inconsequential to the ultimate non-disability determination." Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and quotations omitted); see McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error not harmless where "the reviewing court can determine from the 'circumstances of the case' that further administrative review is needed to determine whether there was prejudice from the error"). The Court is unable to deem the error in the present case to have been harmless. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (even though the district court had stated "persuasive reasons" why the ALJ's failure to mention the treating physician's opinion was harmless, the Ninth Circuit remanded because "we cannot 'confidently conclude' that the error was harmless"); Treichler v. Commissioner, 775 F.3d 1090, 1105 (9th Cir. 2014) ("Where, as in this case, an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency"). It appears that no competent medical source has considered Dr. Pelton's findings and opinions that Plaintiff could not return to work or could do so only as permitted by the QME's report (which is not a part of the record) (A.R. 477, 482).
Remand is appropriate because the circumstances of this case suggest that further administrative review could remedy the error discussed herein. See McLeod v. Astrue, 640 F.3d at 888; see also 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); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) ("Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits"); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand for further administrative proceedings is the proper remedy "in all but the rarest cases"); Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (court will credit-as-true medical opinion evidence only where, inter alia, "the record has been fully developed and further administrative proceedings would serve no useful purpose"); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further proceedings rather than for the immediate payment of benefits is appropriate where there are "sufficient unanswered questions in the record"). There remain significant unanswered questions in the present record. See Marsh v. Colvin, 792 F.3d at 1173 (remanding for further administrative proceedings to allow the ALJ to "comment on" the treating physician's opinion). Moreover, it is not clear that the ALJ would be required to find Plaintiff disabled for the entire claimed period of disability even if Dr. Pelton's opinions were fully credited. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).
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 other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be an appropriate remedy at this time. --------
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: July 21, 2017.
/s/_________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE