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Cornelius Tatum v. Michael J. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


August 25, 2011

CORNELIUS TATUM,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff filed a Complaint on October 19, 2010, seeking review of the denial by the Social Security Commissioner (the "Commissioner") of plaintiff's application for a period of disability and disability insurance benefits ("DIB"). On December 16, 2010, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on July 28, 2011, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings; and defendant requests that the Commissioner's decision be affirmed or, alternatively, remanded for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument.

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

On November 1, 2007, plaintiff filed an application for a period of disability and DIB. (Administrative Record ("A.R.") 11, 16.) Plaintiff, who was born on April 7, 1970,*fn1 claims to have been disabled since August 20, 2007, due to lower back injuries.*fn2 (A.R. 11-17, 50, 61.) Plaintiff has past relevant work experience as a "material handler/warehouseman." (A.R. 15.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 11, 50-54, 61-65), plaintiff requested a hearing (A.R. 67). On June 5, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Michael D. Radensky (the "ALJ"). (A.R. 18-47.) Plaintiff's wife, Kisha Tatum (A.R. 37-42), and vocational expert Rinehart (A.R. 43-46) also testified.

On August 27, 2009, the ALJ denied plaintiff's claim (A.R. 11-17), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 2-4). That decision is now at issue in this action.

SUMMARY OF ADMINISTRATIVE DECISION

The ALJ found that plaintiff meets the insured status requirements of the Social Security Act through December 21, 2011. (A.R. 13.) The ALJ also found that plaintiff has not engaged in substantial gainful activity since August 20, 2007, the alleged onset date. (Id.) The ALJ determined that plaintiff has the severe impairment of degenerative disc disease of the lumbar spine. (Id.) The ALJ further determined that plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (Id.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. § 404.1567(b), with the exception that plaintiff can perform "no more than occasional postural activities." (A.R. 14.) The ALJ further determined that plaintiff is unable to perform his past relevant work as a "material handler/warehouseman." (Id.)

The ALJ found that plaintiff "has at least a high school education and is able to communicate in English." (A.R. 16.) The ALJ also found that "[t]ransferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that [plaintiff] is 'not disabled,' whether or not [plaintiff] has transferable job skills." (Id.)

Having considered plaintiff's age, education, work experience, and RFC, as well as the testimony of the vocational expert, the ALJ found that jobs exist in significant numbers in the national economy that plaintiff could perform, including those of assembler small parts I, cashier, and electronic worker. (A.R. 16.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, from August 20, 2007, through the date of his decision. (A.R. 17.)

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495

F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.

DISCUSSION

Plaintiff makes the following claims: (1) the ALJ's decision is not supported by substantial evidence; and (2) the ALJ failed to properly reject the testimony of plaintiff and his wife. (Joint Stip. at 3-17.)

I. The ALJ Failed To Give A Specific And Legitimate Reason Supported By Substantial Evidence For Rejecting The Opinion Of Plaintiff's Treating Doctor.

Plaintiff claims that the ALJ's decision is not supported by substantial evidence, because the ALJ failed to properly reject the opinion of plaintiff's treating doctor and, instead, improperly relied upon the opinions of nonexamining doctors. (Joint Stip. at 3-5, 8-11.)

It is the responsibility of the ALJ to analyze evidence and resolve conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In the hierarchy of physician opinions considered in assessing a social security claim, "[g]enerally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(d).

The opinions of treating physicians are entitled to the greatest weight, because the treating physician is hired to cure and has a better opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When a treating physician's opinion is not contradicted by another physician, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)(as amended). When contradicted by another doctor, a treating physician's opinion may only be rejected if the ALJ provides "specific and legitimate" reasons supported by substantial evidence in the record. Id. "The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of . . . a treating physician." Id. at 831; see Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)(finding that the nonexamining physician's opinion "with nothing more" did not constitute substantial evidence).

An ALJ "has a special duty to fully and fairly develop the record and to assure that claimant's interests are considered." Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Pursuant to 20 C.F.R. § 404.1512(e), the Administration "will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, [or] the report does not contain all the necessary information . . . ." See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)(noting that "[i]f the ALJ thought he needed to know the basis of [the doctor's] opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry").

On October 5, 2007, plaintiff was seen for a follow-up evaluation by Dr. Alex H. Etemad, M.D., an orthopedic specialist and plaintiff's primary treating physician, for his allegedly disabling spinal condition. (A.R. 201-04.) After reviewing plaintiff's MRI film and findings "in great detail," Dr. Etemad diagnosed plaintiff with "[l]umbar spine L5-S1 disc-desiccation, dehydration and darkening as shown on the MRI with 4-millimeter herniation as well as milder findings at the L2-L3 level with severe and disabling low[er] back pain with radiation to the left thigh." (A.R. 202.) Dr. Etemad found that plaintiff had "continued spasm, tenderness and guarding and positive straight leg raise with radicular finding . . . as [previously] documented in detail [in his] chart." (A.R. 201.) Dr. Etemad also noted that plaintiff "has tried various therapy modalities as well as various medications . . . , but the pain is persisting." (A.R. 202.) Dr. Etemad noted that plaintiff's back pain "has been causing a lot of limitation, pain, tenderness, and muscle spasms for a long period of time." (Id.) Accordingly, Dr. Etemad opined that the "proper course of action is to provide epidural steroid injections" with the hope that "by performing these outpatient injections . . . [plaintiff] can avoid surgery [on his] low[er] back." (Id.) Dr. Etemad also refilled plaintiff's prescription for "Vicodin extra strength as well as Soma." (A.R. 203.) Dr. Etemad opined that plaintiff would be "temporarily and totally disabled" and unable to work until January 2, 2008, due to his low[er] back condition. (Id.)

Treatment notes from November 7, 2007, to August 27, 2008, which appear to contain Dr. Etemad's signature, indicate that plaintiff continued to experience pain, stiffness, and spasms. (A.R. 226-30.) In addition, Dr. Etemad again diagnosed plaintiff with problems in his left thigh and lower back at the L5-S1 and L2-L3 locations. (Id.) With respect to Dr. Etemad's opinion regarding plaintiff's temporary disability, a December 14, 2007 treatment note indicated that plaintiff would be unable to work until March 1, 2008. Similarly, a May 16, 2008 treatment note indicated that plaintiff would not be able to work until September 16, 2008. An August 27, 2008 treatment note indicated that plaintiff wanted to return to work, and "return to work" was listed, among other things, in plaintiff's treatment plan. (A.R. 226.)

In his decision, it appears that the ALJ gives less weight to Dr. Etemad's opinion than that of the State Agency reviewing physicians, because Dr. Etemad only found that plaintiff was temporarily disabled and would be able to return to work. Specifically, the ALJ notes that "the record contains opinions from [plaintiff's] treating physician regarding temporary disability (Exhibits 2F, p. 6 and 6F, p. 5). Both records show [plaintiff] would be able to return to work and therefore, do not warrant great weight."*fn3 (A.R. 15.) The ALJ did give great weight, however, to the opinions of the State Agency reviewing physicians.

The ALJ's reason for rejecting Dr. Etemad's opinion is not specific, legitimate, or supported by substantial evidence, as required. As an initial matter, the two records cited by the ALJ, in which plaintiff was found to be temporarily and totally disabled, were completed by two different physicians, not one, as the ALJ's opinion suggests. The first record cited by the ALJ -- finding plaintiff to be temporarily and totally disabled from August 23, 2007, to September 6, 2007 -- was completed by Gabriel Martin del Campo, M.D. (A.R. 217.) The second record cited by the ALJ -- finding plaintiff to be temporarily and totally disabled until January 2, 2008 -- was completed by Dr. Etemad, on November 5, 2007. (A.R. 203.) Further, contrary to the ALJ's suggestion, it does not appear that Dr. Etemad opined that plaintiff could return to work. In fact, later treatment notes from Dr. Etemad, which the ALJ either ignored or inexplicably failed to discuss, indicate, inter alia, continuing periods of temporary disability. For example, a December 14, 2007 treatment note indicated that plaintiff could not work until March 1, 2008. (A.R. 229.) Similarly, a May 16, 2008 treatment note indicated that plaintiff could not work until September 16, 2008. (A.R. 227.) The only reference to plaintiff returning to work is in an August 27, 2008 treatment note in which Dr. Etemad noted that plaintiff wants to return to work and listed "return to work" as part of plaintiff's treatment plan; however, it is unclear whether Dr. Etemad believed plaintiff could perform work at that time or at some date in the future. (A.R. 226.) Accordingly, the ALJ's reason cannot constitute a specific and legitimate reason for rejecting Dr. Etemad's opinion.*fn4

Moreover, while the ALJ relies on the opinions of nonexamining State Agency review physicians Dr. Khank T. Vu, D.O., an osteopathic physician (A.R. 205-11), and Diane B. Rose, M.D., an internal medicine specialist (A.R. 212), their opinions, alone, cannot constitute substantial evidence, because they are not based on any independent findings, and the ALJ failed to give a specific and legitimate reason for rejecting Dr. Etemad's opinion.*fn5 Andrews, 53 F.3d at 1041 (noting that where "a nontreating source's opinion contradicts that of the treating physician but is not based on independent clinical findings, or rests on clinical findings also considered by the treating physician, the opinion of the treating physician may be rejected only if the ALJ gives specific, legitimate reasons for doings so that are based on substantial evidence of record").

Accordingly, for the aforementioned reasons, the ALJ failed to give a specific and legitimate reason supported by substantial evidence for rejecting the opinion of plaintiff's treating physician, Dr. Etemad. This constitutes error. On remand, the ALJ needs to properly consider Dr. Etemad's opinion and to the degree necessary, conduct an appropriate inquiry regarding the extent of plaintiff's symptoms and limitations, which Dr. Etemad opined, on several occasions, to be totally and temporarily disabling.

II. The ALJ Must Reconsider The Testimony Of Plaintiff And His Wife.

Based on the foregoing, there are several matters that the ALJ needs to review and reconsider on remand. As a result, the ALJ's evaluation of the testimony of plaintiff and his wife, as well as his ultimate determination regarding plaintiff's credibility, may change. Accordingly, the Court does not reach plaintiff's second claim -- to wit, that the ALJ failed to properly reject the testimony of plaintiff and his wife. To properly review and reconsider this issue, the ALJ needs to consider all the findings of plaintiff's treating doctor and, to the degree necessary, conduct an appropriate inquiry to resolve any ambiguity surrounding the extent of plaintiff's symptoms and limitations. After so doing, the ALJ can determine what impact, if any, this has on his assessment of the testimony of plaintiff and his wife.

III. Remand Is Required.

The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("[T]he decision of whether to remand for further proceedings turns upon the likely utility of such proceedings."). However, where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. at 1179-81.

Remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above-mentioned deficiencies and errors. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for further proceedings is appropriate if enhancement of the record would be useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (remand appropriate to remedy defects in the record). On remand, the ALJ must correct the above-mentioned deficiencies and errors and, to the extent necessary, conduct an appropriate inquiry. After so doing, the ALJ may need to reassess plaintiff's RFC in which case additional testimony from a vocational expert likely will be needed to determine what work, if any, plaintiff can perform.

CONCLUSION

Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order.

IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.

LET JUDGMENT BE ENTERED ACCORDINGLY.


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