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Galina Bezinskaya v. Michael J. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 19, 2011

GALINA BEZINSKAYA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). For the reasons that follow, plaintiff's Motion for Summary Judgment is GRANTED, the Commissioner's Cross Motion for Summary Judgment is DENIED, this matter is remanded to the Commissioner for payment of benefits, and judgment is entered for the plaintiff pursuant to sentence four of 42 U.S.C. § 405(g).

BACKGROUND

Plaintiff, born January 11, 1960, applied on April 23, 2007 for SSI alleging that she became disabled on September 20, 2006 (Tr. at 22, 45, 49, 94.) Plaintiff contended she was unable to work due to lower back pain radiating to her left leg. (Tr. at 24, 258.)

In a decision dated March 25, 2009, Administrative Law Judge ("ALJ") L. Kalei Fong determined plaintiff was not disabled. The ALJ made the following findings:*fn1

1. The claimant has not engaged in substantial gainful activity since April 23, 2007, the SSI application date (20 CFR 416.971 et seq.) (Exhibit 2D).

2. The claimant has the following severe impairment[s]: degenerative disc disease in the lumbar spine, and obesity (20 CFR 416.921 et seq.). 3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.925 and 416.926).

4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work [sic] as defined in 20 CFR 416.967(b). She could lift and carry 50 pounds occasionally and 25 pounds frequently. She could sit for 6 hours, stand and/or walk (with breaks) for 6 hours during an 8-hour workday. She would be unrestricted in performing pushing and/or pulling activities with her upper and lower extremities. She would be able to perform postural activities occasionally. She would have no manipulative, visual, or communicative (except her inability to converse in English) limitations and she would not have any environmental limitations (Exhibit 3F). The undersigned notes that this RFC for medium exertional work allows for the performance of light exertional work.

5. The claimant has no past relevant work (20 CFR 416.965).

6. The claimant was born on January 11, 1960 and was 47 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).

7. The claimant has at least a high school education and is not able to communicate in English (20 CFR 416.964).

8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).

9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969a).

10. The claimant has not been under a disability, as defined in the Social Security Act, since April 23, 2007, the date the application was filed (20 CFR § 416.920(g)).

(Tr. at 11-18.)

ISSUES PRESENTED

Plaintiff has raised the following issues*fn2 A. Whether the ALJ Rejected the Opinion of the Treating Physician Without a Legitimate Reason; B. Whether the ALJ Improperly Discredited Plaintiff's Testimony; and C. Whether the ALJ Improperly Relied On the Vocational Expert Testimony.*fn3

LEGAL STANDARDS

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). ANALYSIS

A. Whether the ALJ Rejected the Opinion of the Treating Physician Without a Legitimate Reason

Plaintiff alleges that the opinion of her treating physician, Dr. Arnold Greenberg, was improperly rejected by the ALJ. In particular, plaintiff contends that the ALJ erred in rejecting Dr. Greenberg's functional capacity opinion and diagnosis of radiculopathy*fn4 based on a consultative examiner's failure to find clinical evidence of radiculopathy during his physical examination.

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).*fn5

Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons. Lester, 81 F.3d at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund, 253 F.3d at 1157,*fn6 except that the ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831.

In this case, plaintiff's treating neurologist, Dr. Greenberg, first started seeing plaintiff in October 2006. (Tr. at 26, 186-87.) During an October 14, 2006 physical examination, Dr. Greenberg found tenderness on palpation of the sciatic nerve and an antalgic gait. (Tr. at 182, 184.) That same day, x-rays taken of the lumbar spine showed "moderate left convex lumbar scoliosis." (Tr. at 199.) On November 11, 2006, Dr. Greenberg performed nerve conduction studies and an electromyogram ("EMG") from which he diagnosed plaintiff with left L5 radiculopathy. (Tr. at 200-06.) Subsequently, on February 26, 2007, Dr. Greenberg also ordered an MRI of the lumbar spine. (Tr. at 193.) The MRI report stated:

L5-S1 shows moderate degenerative disc disease. A moderate sized broad based protrusion is present which is asymmetric towards the left. This extends into the neural foramina while it causes moderate neural foraminal encroachment with mild effacement on the exiting left L4 nerve root against its corresponding pedicle and lamina. Mild facet disease also contributes to neural foraminal stenosis.

(Tr. at 193.) The MRI also revealed mild degenerative disc disease at L1-2 with mild spondylitic bulging, and moderate desiccation of the disc at L4-5 with mild facet arthropathy. (Tr. at 193.) In his April 21, 2007 functional capacity assessment, citing the results from the MRI, EMG, and nerve conduction studies as well as plaintiff's clinical picture, Dr. Greenberg stated a principal diagnosis of left L5 radiculopathy with a secondary diagnosis of low back pain and degenerative disc disease. (Tr. at 257-60.) He assessed plaintiff as partially restricted in climbing and bending, and capable of sitting for 2-4 hours total daily (1-2 hours without interruption), standing and walking for 1-2 hours total daily (less than 1 hour without interruption), and lifting and carrying less than 5 pounds occasionally. (Tr. at 257-58.) Based on these restrictions and noting plaintiff's low back pain radiating to her left leg, he limited plaintiff to less than the full range of sedentary work (Tr. at 258-60.) He did not expect improvement based on plaintiff's long, 10-year history with her condition. (Tr. at 257, 259.)

Subsequently, on July 20, 2007, plaintiff attended a consultative orthopedic evaluation by Dr. Rajeswari Kumar. (Tr. at 207-14.) During the physical examination, plaintiff's gait was non-antalgic and her posture normal, and she used no assistive devices. (Tr. at 208-09, 211.) Her motor strength was 5/5 in the upper and lower extremities with normal sensation and reflexes. (Tr. at 210-11.) Her seated straight leg raising test was negative. (Tr. at 209.) Although Dr. Kumar noted tenderness in the lower lumbar paraspinal region and a restricted range of motion in the lumbar spine, he found no clinical evidence of radiculopathy. (Tr. at 209, 211.) He diagnosed plaintiff with chronic low back pain and probable lumbar spondylosis. (Tr. at 211.) Based upon his physical examination, Dr. Kumar concluded that plaintiff was able to perform medium exertional work. (Tr. at 14, 211.) She could lift and carry 50 pounds occasionally and 25 pounds frequently, do frequent bending and stooping activities, stand and walk for 6 hours without an assistive device (with routine breaks), and sit, kneel, or climb without restriction. (Tr. at 211.)

The two State Agency physicians who reviewed plaintiff's records essentially adopted Dr. Kumar's findings. (Tr. at 14, 215-21, 245-51.) State agency physician Dr. Beig's July 31, 2007 assessment noted that Dr. Kumar's clinical evaluation showed "no evidence of definite radiculopathy" and that plaintiff's gait was within normal limits. (Tr. at 216.) Dr. Beig imposed essentially the same limitations for medium work as Dr. Kumar (Tr. at 211, 216-17.) State Agency physician Dr. Dipsia's December 10, 2007 assessment, which the ALJ ultimately followed, was similar, except that Dr. Dipsia imposed additional postural limitations.*fn7 (Tr. at 246-47.)

The ALJ rejected Dr. Greenberg's RFC assessment based on the above findings by Dr. Kumar and the State Agency physicians, stating:

[Dr. Greenberg, plaintiff's treating physician,] limited her to less than sedentary work activity primarily due to her 10-year history of low back impairment with moderate pain. He also noted that her pain radiated to her left leg...Dr. Greenberg's restricted assessment is not supported by the objective medical evidence. Dr. Kumar examined the claimant and found no evidence of radiculopathy. In fact, Dr. Kumar found the claimant capable of performing medium exertional work. Dr. Greenberg found that the claimant's impairment began ten years past, well before he began treating her. His findings are based greatly upon her subjective complaints of pain. His findings are contradicted by Dr. Kumar's physical examination which was in turn supported by other evidence in the record. (Tr. at 14-15.)

Although the ALJ suggested that Dr. Greenberg's findings were "based greatly" on plaintiff's subjective complaints and not supported by objective evidence (tr. at 15), the record shows that his diagnosis of radiculopathy was based on his clinical findings during approximately 10 appointments as of April 21, 2007 (tr. at 172-206), the nerve conduction studies and EMG (tr. at 200-06), and the MRI which showed a moderate sized broad based protrusion at L5-S1 with moderate left neural foraminal stenosis. (Tr. at 14, 193.) Foraminal stenosis is one of the potential causes of radiculopathy. See Radicular Pain and Radiculopathy Definition, http://www.spine-health.com/glossary/r/radicular-pain-and-radiculopathy. Accordingly, Dr. Greenberg's opinion is not conclusory or minimally supported, see Meanel, 172 F.3d at 1114, and is thus entitled to appropriate deference under the treating physician rule. Smolen, 80 F.3d at 1285; SSR 99-2p, at *7.

Even though a treating professional's opinion is generally accorded superior weight, if it is contradicted by an examining professional's opinion supported by different independent clinical findings, the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). Of course, the ALJ must provide specific and legitimate reasons for rejecting the treating physician's opinion. Lester, 81 F.3d at 830. Here, the examining physician, Dr. Kumar, made some independent clinical findings to support his contradictory opinion that plaintiff did not suffer from radiculopathy. According to his examination, her gait was non-antalgic and her posture, motor strength, sensation, and reflexes were normal. Her seated straight leg raising test was negative, and he found no clinical evidence of radiculopathy. (Tr. at 208-11.)

However, the problem with the ALJ's reliance on Dr. Kumar's opinion is that Dr. Kumar did not have the benefit of plaintiff's prior medical records, including results from the x-rays, nerve conduction studies, EMG, and MRI. (Tr. at 207.) These tests were conducted in 2006 and early 2007 and the records were presumably available by the time of Dr. Kumar's evaluation on July 20, 2007, but for some reason he did not have access to them. (Tr. at 207.) The regulations require that a consultative examiner be given any necessary background information about the plaintiff's condition. 20 C.F.R. § 404.1517. Background information is essential because consultative exams are utilized "to try to resolve a conflict or ambiguity if one exists." 20 C.F.R. § 404.1519a(a)(2). An opinion on a long-standing medical problem given after only a one-shot examination, without recourse to the prior medical records, is not one which can generally be relied upon. This is especially true when the medical records contain results from multiple objective tests that the treating physician used to support his opinion.

Furthermore, although the State Agency physicians indicated that they had reviewed plaintiff's medical records (tr. at 216, 220, 250), they did not have the opportunity to examine plaintiff and appear to have relied to a large extent on consultant Dr. Kumar's physical examination. (See e.g. Tr. at 216 (noting that clinical evaluator found "no evidence of definite radiculopathy").) They do not address the results from the x-rays, nerve conduction studies, EMG, or MRI relied upon by Dr. Greenberg,*fn8 nor do they explain why their conclusions based on these tests are different. In any event, the opinion of a nonexamining physician cannot by itself constitute substantial evidence justifying rejection of the treating physician's opinion. Lester, 81 F.3d at 831.

In sum, the ALJ's reasons for rejecting Dr. Greenberg's opinion are not supported by substantial evidence. Accordingly, the court must determine whether the case should be remanded for further proceedings or an award of benefits, a decision within the discretion of the court. Smolen, 80 F.3d at 1292. An award of benefits is appropriate where "no useful purpose would be served by further administrative proceedings" and "the record has been thoroughly developed." Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988). This is a recognition of the "need to expedite disability claims." Id. at 1401. Generally, where the ALJ fails to provide adequate reasons for rejecting the opinion of a treating physician, the opinion is credited as a matter of law. Lester, 81 F.3d at 834. Here, if the treating physician's opinion is credited, plaintiff's restrictions would render her disabled. It is obvious that very few, if any, employers would be able to employ an individual only capable of sitting for 2-4 hours total daily (1-2 hours without interruption), standing and walking for 1-2 hours total daily (less than 1 hour without interruption), and lifting and carrying less than 5 pounds occasionally. Therefore, remand for an award of benefits is appropriate. In light of this conclusion, the court need not address or decide the remaining issues raised by plaintiff.*fn9

CONCLUSION

Accordingly, IT IS ORDERED that plaintiff's Motion for Summary Judgment is GRANTED, the Commissioner's Cross Motion for Summary Judgment is DENIED, this matter is remanded to the Commissioner for payment of benefits, and judgment is entered for the plaintiff pursuant to sentence four of 42 U.S.C. § 405(g).


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