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Turner v. Astrue


September 30, 2010


The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge



On July 16, 2009, plaintiff Wanda Turner ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; July 22, 2009 Case Management Order ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum and Opinion and Order of Remand because the Administrative Law Judge ("ALJ") erred in rejecting the opinion of plaintiff's treating physician.


On October 24, 2005, plaintiff filed an application for Disability Insurance Benefits. (Administrative Record ("AR") 13). Plaintiff asserted that she became disabled on November 9, 2004, due to multiple herniated discs in her neck and back and chronic pain. (AR 218, 221). The ALJ examined the medical record and heard testimony from plaintiff (who was represented by counsel), a medical expert, and a vocational expert on October 22, 2007 and January 5, 2009. (AR 25-88).

On February 26, 2009, the ALJ determined that plaintiff was not disabled through June 30, 2007, the date last insured. (AR 13-24). Specifically, the ALJ found: (1) plaintiff suffered from pain in her neck and back secondary to a severe impairment in the musculoskeletal system (AR 15); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal one of the listed impairments (AR 18); (18) plaintiff retained the residual functional capacity to perform medium work with some physical and mental limitations (AR 19);*fn1 and (4) plaintiff could perform her past relevant work as a bank teller or home care provider (AR 23).

The Appeals Council denied plaintiff's application for review. (AR 1-3).


A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that she is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit her ability to work? If not, the claimant is not disabled. If so, proceed to step three.

(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.

(4) Does the claimant possess the residual functional capacity to perform her past relevant work?*fn2 If so, the claimant is not disabled. If not, proceed to step five.

(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).

The ALJ has an affirmative duty to assist the claimant in developing the record at every step of the inquiry. Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001); see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (ALJ has special duty to fully and fairly develop record and to assure that claimant's interests are considered). The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54 (citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).

B. Standard of Review

Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flatten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). 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) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flatten, 44 F.3d at 1457).


Plaintiff contends that the ALJ improperly evaluated the medical evidence in rejecting the opinion of her treating physician, Dr. Ahmed. (Plaintiff's Motion at 3-9). Upon reviewing the record, the Court agrees.

A. Pertinent Law

In Social Security cases, courts employ a hierarchy of deference to medical opinions depending on the nature of the services provided. Courts distinguish among the opinions of three types of physicians: those who treat the claimant ("treating physicians") and two categories of "nontreating physicians," namely those who examine but do not treat the claimant ("examining physicians") and those who neither examine nor treat the claimant ("nonexamining physicians").

Lester v. Chater, 81 F.3d 821, 830 (9th Cir.), as amended (1996) (footnote reference omitted). A treating physician's opinion is entitled to more weight than an examining physician's opinion, and an examining physician's opinion is entitled to more weight than a nonexamining physician's opinion. See id. In general, the opinion of a treating physician is entitled to greater weight than that of a non-treating physician because a treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Morgan v. Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)).

A treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal quotations omitted). An ALJ can reject the opinion of a treating physician in favor of a conflicting opinion of another examining physician if the ALJ makes findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record. Id. (citation and internal quotations omitted). "The ALJ must do more than offer his conclusions." Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). "He must set forth his own interpretations and explain why they, rather than the [physician's], are correct." Id.; see Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out detailed and thorough summary of facts and conflicting clinical evidence, stating his interpretation thereof, and making findings) (citations and quotations omitted). "Broad and vague" reasons for rejecting a treating physician's opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir.1989).

When they are properly supported, the opinions of physicians other than treating physicians, such as examining physicians and nonexamining medical experts, may constitute substantial evidence upon which an ALJ may rely. See, e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (consultative examiner's opinion on its own constituted substantial evidence, because it rested on independent examination of claimant); Morgan, 169 F.3d at 600 (testifying medical expert opinions may serve as substantial evidence when "they are supported by other evidence in the record and are consistent with it").

B. The Record Does Not Support the ALJ's Decision

In determining that plaintiff retained the residual functional capacity to perform a limited range of medium work, the ALJ adopted the opinion of consultative orthopedic surgeon, Dr. William Boeck. (AR 22 (citing AR 791-802). The ALJ explained:

As for the opinion evidence, substantial weight is given to the three consultative examinations, in which all of the Board certified orthopedic surgeons agreed that the claimant was not disabled. After reviewing the available medical records and examining the claimant, on two occasions Dr. Dorsey clearly stated that the claimant had no impairment-related physical impairments.*fn3 On October 14, 2008, Dr. Boeck[] had an opportunity to review numerous additional medical records*fn4 before examining the claimant and gave the claimant's subjective complaints additional consideration finding that she would be able to lift and/or carry up to 20 pounds frequently, 50 pounds occasionally. He reported that claimant could stand and/or walk an hour at a time up to two hours in and eight-hour workday and sit two hours at a time, up to six hours in an eight-hour workday.*fn5 He imposed no manipulative limitations and said the claimant was capable of operating foot controls continuously. The doctor found the claimant could frequently climb ramps or stairs, balance, stoop, kneel, crouch, or crawl, but would be precluded from climbing ladders, ropes, or scaffolds. The doctor said the claimant should not work at unprotected heights and occasionally work around moving mechanical parts and operate a motor vehicle. Dr. Boeck's checked box indicating the claimant is unable to travel without a companion for assistance is rejected by the undersigned as there is no foundation for this statement and nothing in his report to explain the reasoning behind his selection. (AR 22 (internal citations to the record omitted); see also AR 796-802 (Dr. Boeck's Medical Source Statement of Ability to Do Work-Related Activities (Physical); but see AR 491-98 (State agency physician's Physical Residual Functional Capacity Assessment finding that plaintiff can do limited light work with manipulative limitations for plaintiff's left upper extremity); AR 519-22 (State agency physician agreeing with light residual functional capacity assessment previously given)).

The ALJ adopted Dr. Boeck's opinion regarding physical residual functional capacity over that of plaintiff's Workers' Compensation treating physician, Dr. Khalid Ahmed. (AR 22-23). Dr. Ahmed began treating plaintiff on January 21, 2005 for an injury sustained while working as a cashier from June 2, 2003 to June 2, 2004.*fn6 (AR 337, 433). Dr. Ahmed treated plaintiff until December 2006, when Dr. Ahmed found plaintiff "permanent and stationary." (AR 336-435). Plaintiff initially complained of left arm pain, low back pain, right lower extremity pain, and weakness to both upper extremities. (AR 426). Dr. Ahmed noted that Plaintiff previously had undergone nerve testing that were negative for signs of carpal tunnel syndrome but that plaintiff reported having numbness and tingling of the left wrist and hand. (AR 427-28). Dr. Ahmed reviewed plaintiff's x-rays which showed slight scoliosis, narrowing of the L5-S1 interspace with mild degenerative changes, and a decreased interval between the humeral head and acromion of plaintiff's left shoulder. (AR 432). Dr. Ahmed diagnosed plaintiff with cervical strain/disc lesion with left radiculitis/ radiculopathy, impingement syndrome rotator cuff tendonitis in the left shoulder, chronic pain secondary to the tendonitis in the left forearm and hands with "possible electronegative carpal tunnel finding" in the left wrist and hand, lumbar strain/disc lesion to the lumbar spine, and psychophysiological depressive illness with anxiety and possible conversion reaction. (AR 433). Dr. Ahmed recommended that plaintiff have an MRI of her spine, left shoulder, a neurodiagnostic consult, and a psychological evaluation. (AR 434).

Thereafter, Dr. Ahmed examined plaintiff every six weeks. (AR 336-425). At plaintiff's second visit Dr. Ahmed noted that the MRI of her cervical spine showed disc bulges in five locations. (AR 423; see also AR 443-47 (MRI report noting same)). Dr. Ahmed noted evidence of left shoulder impingement. (AR 423; see also AR 440-42 (MRI report)). Dr. Ahmed diagnosed plaintiff with a herniated cervical disc, left shoulder impingement syndrome, and lumbar strain and disc herniation in the lumbar spine. (AR 423). Dr. Ahmed noted that plaintiff needed an MRI of the lumbar spine.*fn7 (AR 423).

With respect to plaintiff's possible carpal tunnel syndrome, from plaintiff's third visit and on Dr. Ahmed noted that plaintiff showed positive Tinel's for the cubital tunnel and ulnar nerve on the left elbow.*fn8 (AR 390, 394, 399, 403, 407, 411, 415, 419). Dr. Ahmed also noted that plaintiff had mild Phalen's test with carpal tunnel on plaintiff's left side. (AR 390, 394, 399, 403, 407, 411, 415, 419). Dr. Ahmed diagnosed plaintiff with chronic pain secondary to tendonitis, left forearms and hand with possible carpal tunnel findings left wrist and hand by electroneurodiagnostic testings.*fn9 (AR 390, 394, 399, 403, 407, 411, 419). Dr. Ahmed had referred plaintiff for testing to neurologist Dr. Mumtaz Ali. (AR 448-60). Dr. Ali's Neurological Report dated February 2, 2005, notes diminished grip strength in plaintiff's left hand and abnormal EMG and NCV findings per an Electrodiagnostic Report (AR 451-52; see AR 455-60 (report finding "mild right S1 radiculopathy" and "mild left carpal tunnel syndrome")). Dr. Ali diagnosed plaintiff with mild left carpel tunnel syndrome, myoligamentous injury to the lumbar spine with radiation of symptoms to the right lower extremity, mild right S1 radiculopathy, and intermittent tremors of the left hand on rest. (AR 452). The ALJ did not discuss Dr. Ali's reports. See AR 19-23 (summarizing the evidence but not mentioning Exhibit 3F pages 13-25 [AR 448-60]).*fn10

In his Permanent and Stationary report dated December 15, 2006, Dr. Ahmed summarized the record of his treatment and plaintiff's examination results, and diagnosed plaintiff with carpal tunnel syndrome in plaintiff's left wrist and hand, among other things. (AR 336-44). Dr. Ahmed described plaintiff as having limitations precluding her from repetitive motions of the neck and spine, forceful activities (i.e., lifting, pushing, pulling, grasping, holding, torquing, and performing skilled finger dexterity) in the left shoulder and left wrist, with limitation to light work based on plaintiff's lumbar spine issues.*fn11 (AR 346-47).

In adopting Dr. Boeck's opinion concerning plaintiff's physical residual functional capacity, the ALJ noted that he was giving "some weight" to treating physician Ahmed's opinion. (AR 22). However, the ALJ explained that he was not giving controlling weight to Dr. Ahmed's opinion regarding plaintiff's residual functional capacity. (AR 22). Because Dr. Ahmed's opinion was contradicted by other physicians, to reject it the ALJ was required to provide specific, legitimate reasons supported by substantial evidence. Orn, 495 F.3d at 632. Here, the ALJ explained:

[Dr. Ahmed's] opinion regarding the claimant's residual functional capacity is not entitled to controlling weight as it is not well-supported by objective findings and is not consistent with the other evidence of record. Indeed, his assessment, while not egregiously exaggerated, does overstate the claimant's limitations, particularly in light of the evidence. His limitations [regarding grasping, pinching, holding, torquing and performing skilled finger dexterity] allegedly secondary to carpal tunnel syndrom are rejected because the doctor's own reports, including the permanent and stationary report dated December 15, 2006 fail to even mention carpal tunnel as one of claimant's diagnoses. As to his March 22, 2007 spinal impairment questionnaire, his responses are given reduced weight because they are hyperbolic limitations without further explanation, contained in a form consisting largely of checked boxes that was formulated by the claimant's attorney. On one area, the doctor reported the claimant would be unable to sit, or stand and/or walk more than an hour a day; yet he recommends the claimant participate in vocational rehabilitation, which would not be feasible given these limitations. The doctor even added psychological conditions and limitations in this questionnaire. Not only is Dr. Ahmed Nashed*fn12 not a mental health expert, his "opinion" consists of no more than a check-list assessment that does not include an explanation of the basis of his conclusions. Finally, Dr. Ahmed's conclusions of disability are based on criteria other than Social Security Regulations, as such determinations are reserved for the Commissioner. Accordingly, while I do not entirely dismiss Dr. Ahmed's opinion, I cannot find it sufficiently supported to warrant the establishment of any limitations beyond those set forth above. (AR 22-23 (internal citations and footnotes omitted)). These reasons are not specific, legitimate reasons to support rejecting Dr. Ahmed's opinion.

First, contrary to the ALJ's reasoning, the record shows that Dr. Ahmed opined consistently after plaintiff's neurological examination by Dr. Ali that plaintiff suffered from possible carpal tunnel syndrome in her left hand and wrist. (AR 390, 394, 399, 403, 407, 411, 419). Dr. Ahmed's Permanent and Stationary report specifically included a diagnosis of left wrist/hand carpal tunnel syndrome. (AR 344). Dr. Ahmed's findings were consistent with Dr. Ali's neurological evaluation. (AR 448-60). Given that the ALJ did not mention Dr. Ali's findings, it is unclear whether the ALJ simply overlooked this objective evidence to support Dr. Ahmed's opinion or whether the ALJ erred in finding that Dr. Ahmed's findings were not "well-supported" by objective medical evidence. Moreover, as noted above, the record contains two non-examining State agency physician opinions finding that plaintiff would have manipulation limitations in her left upper extremity. See AR 491-98 (Physical Residual Functional Capacity Assessment), AR 519-22 (Request for Medical Advice). The ALJ did not mention these opinions which support Dr. Ahmed's opinion.

Second, to the extent the ALJ questioned whether Dr. Ahmed's recommendation that plaintiff undergo vocational rehabilitation was consistent with his opinion concerning plaintiff's limitations, or to the extent the ALJ believed that Dr. Ahmed's opinion was based on criteria other than as set forth in the Social Security Regulations, the ALJ should have asked Dr. Ahmed for clarification. An ALJ has an affirmative duty to assist the claimant in developing the record at every step of the sequential evaluation process. Bustamante, 262 F.3d at 954; see also Webb, 433 F.3d at 687. The ALJ's duty is triggered "when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citation omitted).

C. The Court Cannot Find From the Record that the ALJ's Misstatements about the Evidence Was Harmless

The ALJ's misstatements about the evidence calls into question the validity of both the ALJ's residual functional capacity determination and the ALJ's decision as a whole. See Regennitter v. Commissioner, 166 F.3d 1294, 1297 (9th Cir. 1999) (materially "inaccurate characterization of the evidence" warrants remand); Lesko v. Shalala, 1995 WL 263995 *7 (E.D.N.Y. Jan. 5, 1995) (same). Though there may be sufficient evidence in the record to support a conclusion that plaintiff has the residual functional capacity the ALJ found, the Court cannot conclude that the ALJ necessarily would have adopted the residual functional capacity the ALJ adopted had the ALJ considered that Dr. Ali and the two reviewing State agency physicians agreed with Dr. Ahmed's assessment that plaintiff suffers from manipulative limitations.

Nor can the Court find that the ALJ's error in misstating Dr. Ahmed's findings was harmless. Assuming, arguendo, that the ALJ would have adopted the State agency physician's limitations concerning plaintiff's left upper extremity, there is inadequate evidence in the record to establish at step five that plaintiff could have worked. The vocational expert who testified at plaintiff's second administrative hearing opined that a person with "markedly limited in the use of their upper extremities for grasping and find manipulation" would not be able to perform any of plaintiff's past relevant work. (AR 85). The vocational expert did not offer an opinion as to whether there exists any work that a person with the residual functional capacity the ALJ found to exist who also had manipulative limitations could perform.


For the foregoing reasons, the decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion.*fn13


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