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Osmin Nahum Caldron v. Michael J. Astrue

November 14, 2011

OSMIN NAHUM CALDRON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

The Court now rules as follows with respect to the two disputed issues *fn1 listed in the Joint Stipulation ("JS"). *fn2

I. DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues which Plaintiff is raising as the grounds for reversal and/or remand are as follows:

(1) Whether the Administrative Law Judge ("ALJ") should have afforded the opinion of the treating specialists controlling weight; and

(2) Whether the ALJ properly evaluated Plaintiff's subjective pain complaints.

(JS at 3.)

II. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). /

III. DISCUSSION

A. The ALJ's Findings.

The ALJ found that Plaintiff has the severe impairments of status post-lumbar discectomy and herniated discs. (AR at 13.) The ALJ concluded that Plaintiff had the residual functional capacity ("RFC") to perform sedentary work, limited to lifting and/or carrying ten pounds occasionally; sitting six hours in an eight-hour workday; standing and/or walking two hours in an eight-hour workday with a stand/sit option; pushing, pulling, kneeling, bending, stooping, and climbing stairs occasionally; and never climbing ladders, ropes, or scaffolds. (Id. at 17.)

Relying on the testimony of the vocational expert ("VE"), the ALJ determined Plaintiff was able to perform his past relevant work as a surveillance system monitor (Dictionary of Occupational Titles ("DOT") No. 379.367-010). (AR at 21.)

B. The ALJ Failed to Properly Evaluate the Medical Evidence in Assessing Plaintiff's RFC.

1. Background.

Plaintiff was involved in two motor vehicle accidents on November 10, 2006, and again on December 20, 2006. (Id. at 94.) He initially received three months chiropractic treatment and physical therapy for his resulting neck and low back pain. (Id. at 94, 238.)

On March 9, 2007, Plaintiff underwent an MRI of the lumbar spine. The MRI revealed spondylolisthesis at L5/S1; mild to moderate disc protrusions impinging on the nerve roots at L5/S1, and at L1/L2; bilateral neuroforaminal narrowing with impingement on the L5 and L1 exiting nerve roots; and bilateral facet arthropathy. (Id. at 205.) On April 10, 2007, Plaintiff saw orthopedic spine surgeon, Daniel A. Capen, M.D., who reviewed the MRI and indicated diagnoses of two level discopathy (based on the MRI, which showed multilevel lumbar spine disc protrusions with bilateral neural foraminal stenosis); Grade I spondylolisthesis of L5 on S1; and lumbar sprain/strain syndrome. (Id. at 205-06.) Plaintiff reported to Dr. Capen that he could only sit for about five minutes, and stand and walk for ten minutes before experiencing increased pain. (Id. at 202.) Plaintiff also reported difficulty going up and down stairs. (Id.) Examination revealed tenderness on palpation at the midline, positive sacroiliac stress test on the left, positive straight leg raising on the left, and reduced range of motion. (Id. at 203-04.) Dr. Capen initially recommended steroid injections and pain medication, and Plaintiff underwent a series of epidural injections on July 6, July 10, and August 3, 2007. (Id. at 264-69.)

On August 14, 2007, on re-examination, Dr. Capen noted that the three epidural injections had not relieved Plaintiff's pain. (Id. at 197.) At that point in time, Plaintiff "[was] still working, and is able to work." (Id.) Examination revealed range of motion that was "quite good," but some tightness, and some pain on bend and rotation. (Id. at 198.)

Plaintiff continued to work until October 9, 2007, his alleged date of onset. (Id.)

On November 13, 2007, Dr. Capen re-evaluated Plaintiff for surgical intervention. (Id. at 194-96.) He again noted that the three lumbar epidural steroid injections failed to adequately relieve Plaintiff of his symptoms. (Id. at 194.) Physical examination revealed tenderness to palpation over the midline, spasm, guarding, pain with range of motion testing, and positive straight leg raising on the left. (Id. at 195.) He noted that Plaintiff's injury left "dysfunction, disability and chronic pain." (Id.) He reported that therapy, medications, and all conservative treatments, including steroid injections, had failed. (Id.) He informed Plaintiff that he had the choice of "attempting to live with the pain or undergoing surgical intervention . . ." with no guarantee of complete or even partial relief. (Id.)

After that date, Plaintiff regularly saw Dr. Capen, or others in his office, for follow-up and medication management while waiting for authorization for surgery. On December 4, 2007, physical examination found lumbar spine midline tenderness, spasm, and pain on range of motion testing. (Id. at 192.) Dr. Capen opined that Plaintiff "remains temporarily totally disabled." (Id.) In January 2008, Dr. Capen found pain and tenderness in the paralumbar region; noted that Plaintiff ambulated with an "essentially normal gait"; experienced increased pain on heel and toe walk attempts; and exhibited positive straight leg raise bilaterally. (Id. at 189.) He again opined that Plaintiff was temporarily totally disabled. (Id.) In February 2008, Dr. Capen noted ongoing spasm, tightness, tenderness, and limited range of motion of the lumbar spine. (Id. at 185-86.) In April 2008, Dr. Jarminski, filling in for Dr. Capen, found continued paralumbar muscle tenderness, guarding, limited range of motion of the lumbar spine, increased low back pain on heel/toe walk attempts, and positive bilateral straight leg raising. (Id. at 183.) In May 2008, the physician's assistant who examined Plaintiff under the direction and supervision of Dr. Capen, noted restricted range of motion of the lumbar spine, spasm, midline tenderness, positive straight leg raise bilaterally, and ambulation with an antalgic short-stepped gait. (Id. at 180.) In June 2008, Plaintiff was found to have a positive bilateral straight leg raise, continuously worse on the left side, and range of motion that is "still continuously stiff, achy and limited secondary to pain." (Id. at 177.) In July 2008, the findings were similar and Dr. Capen again stated that nothing else could be done for Plaintiff short of surgery, for which Plaintiff was still awaiting authorization. (Id. at 174.) Dr. Smith later reported that in mid-2008 Plaintiff "was declared permanent and stationary." (Id. at 238.)

As of September 9, 2008, Plaintiff was still awaiting authorization for the surgery. (Id. at 211.) On that date, Dr. Capen reiterated Plaintiff's need for authorization for surgical intervention in the form of a posterior lumbar interbody fusion at L4-5 and L5-S1. (Id. at 212.)

On September 14, 2008, Plaintiff underwent a consultative orthopedic examination, performed by orthopedic surgeon, Carlos Gonzalez, M.D. (Id. at *fn3 217.) Dr. Gonzalez reviewed x-rays, apparently taken by his office, which found only mild degenerative change over L5/S1 and L4-5; there is no indication that he reviewed Plaintiff's 2007 MRI or any of Plaintiff's other medical records. (Id. at 220.) Dr. Gonzales found Plaintiff could lift and carry fifty pounds occasionally and twenty-five pounds frequently; could push and pull on a frequent basis with appropriate weight; could stand, walk, and sit without limitations; did not require an assistive ambulatory device; could bend, kneel, stoop, crawl, and crouch on a frequent basis; and could perform overhead activities. (Id. at 221.) This would constitute medium-level work. DOT, Fourth Ed. 1991, App. C.

On October 23, 2008, state agency evaluator, N.J. Rubaum, M.D., indicated that Plaintiff's primary diagnosis was low back pain. (AR at 222.) The case analysis form submitted to Dr. Rubaum references receipt of Dr. Capen's records dated April 2007 through July 2008. (Id. at 228.) The case analysis form also summarizes the findings of the "CE" (consulting examiner, Dr. Gonzalez), but fails to reflect any of the findings or conclusions from Dr. Capen's reports. (Id.) Presumably, after reviewing both Dr. Gonzalez's report and Dr. Capen's records, Dr. Rubaum completed a Physical Residual Functional Capacity Assessment, a check-box form, wherein he indicated that

Plaintiff could lift and/or carry fifty pounds occasionally, twenty-five pounds frequently; stand and/or walk about six hours in an eight-hour workday; and could climb ramps/stairs, ladder/rope/ scaffolds, balance, stoop, kneel, crouch, and crawl frequently. (Id. at 223-26.) This would constitute medium-level work. DOT, Fourth Ed. 1991, App. C. Dr. Rubaum also opined, without explanation, that "claimant's credibility is seriously in doubt." (Id. at 227.) Moreover, Dr. Rubaum indicated that the "treating or examining source statement(s) regarding the claimant's physical capabilities" were in the file, but he also indicated that the "treating/examining source conclusions about the claimant's limitations or restrictions" were not significantly different from his own findings. (Id.) While this is true with respect to examining source Dr. Gonzalez's conclusions, as Dr. Rubaum's conclusions essentially mirror those of Dr. Gonzalez, it certainly ...


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