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David Caswell v. Michael J. Astrue

June 19, 2012

DAVID CASWELL,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff appeals a decision by Defendant Social Security Administration ("the Agency"), denying his application for Supplemental Security Income ("SSI") and Disability Insurance benefits ("DIB"). He claims that the Administrative Law Judge ("ALJ") erred when he: (1) failed to properly consider the doctors' opinions; and

(2) concluded that Plaintiff was not credible. For the reasons discussed below, the Court finds that the ALJ erred in addressing the medical evidence but did not err in his credibility finding. As such, the Agency's decision is reversed and the case is remanded for further proceedings consistent with this opinion.

II. SUMMARY OF PROCEEDINGS

In October 2008, Plaintiff applied for SSI and DIB, alleging that he was disabled as of 1998. (Administrative Record ("AR") 106-14.) His application was denied initially and on reconsideration. (AR 48-52, 56-60.) He then requested and was granted a hearing before an ALJ. On March 5, 2010, he appeared for the hearing. (AR 22-42.) On June 25, 2010, the ALJ issued a decision denying benefits. (AR 9-16.) Plaintiff appealed the ALJ's decision but the Appeals Council denied review. (AR 1-5.) This appeal followed.

III. ANALYSIS

A. The ALJ's Findings Regarding The Doctors' Opinions Plaintiff suffers from thoracic outlet syndrome, myofascial pain syndrome, and spondylosis of the spine. (AR 12.) Dr. Andrew Hesseltine, a board certified anesthesiologist who specializes in pain management, treated Plaintiff from 2006 to 2009. (AR 207-46.) According to Dr. Hesseltine, Plaintiff is incapable of performing a full range of work due to his conditions and the pain caused by them. (AR 262-64.) The ALJ rejected this opinion and accepted, instead, the opinion of a non-treating, non-examining physician G. Taylor Holmes. (AR 14.) Plaintiff alleges that the ALJ erred in doing so. For the following reasons, the Court agrees.

Generally speaking, as a treating physician, Dr. Hesseltine's opinion was entitled to deference. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); see also Morgan v. Comm'r, 169 F.3d 595, 600 (9th Cir. 1999) (explaining treating physician's opinion "is given deference because 'he is employed to cure and has a greater opportunity to know and observe the patient as an individual.'") (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)).

Thus, all things being equal, Dr. Hesseltine's opinion regarding Plaintiff's capacity to work should have been given controlling weight. Orn, 495 F.3d at 631; Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). That being said, however, the ALJ was not required to simply accept Dr. Hesseltine's opinion and, where, as here, it was contradicted by Dr. Holmes's opinion, the ALJ was empowered to reject it for specific and legitimate reasons supported by substantial evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (quoting Magallanes v. Bowen 881 F.2d 747, 751 (9th Cir. 1989)); Morgan, 169 F.3d at 600.

The ALJ rejected Dr. Hesseltine's opinion because: (1) there was no evidence that he performed a thorough physical examination; (2) the treatment regimen he employed consisted of only steroid injections and pain medication; (3) the record does not contain objective findings that support Dr. Hesseltine's "extreme" limitations; and (4) Dr. Hesseltine's limitations are not consistent with the "tone" of his treatment notes, showing Plaintiff doing well and able to work with pain management. (AR 14.) The Court does not find these reasons persuasive.

The notes from Dr. Hesseltine's many visits suggest that he performed a physical examination each time he saw Plaintiff. Though many of the notes documenting the exams set forth that the results of the exams were "unchanged from previous [exams]," (AR 221, 223, 224, 227, 228, 230, 231, 232, 233, 234, 235, 236, 237, 240, 242, 243, 244, 245, 246), they clearly suggest that Dr. Hesseltine performed a physical exam each time he saw Plaintiff. Even were the Court to ignore the exams when the doctor merely noted that Plaintiff's condition was unchanged, there are still numerous other times when the doctor recorded the specific results of the exams. (AR 207, 209, 211, 213, 214, 216, 218, and 220.)

As to the ALJ's finding that the exams were not "thorough," the Court is not clear as to what the ALJ meant. There is no explanation in his decision as to what was lacking. And a review of the file does not reveal what the doctor failed to do. Nor is the Court aware of any standard norms required for an examination to be deemed "thorough." As such, the Court finds that the ALJ's first reason for rejecting Dr. Hesseltine's opinion is not supported by the record.

The ALJ's second reason for rejecting Dr. Hesseltine's opinion was that the treatment regimen he prescribed, which consisted of steroid injections and pain medications, undercut the doctor's opinion that Plaintiff's condition was so serious. (AR 14.) But there is no evidence before the Court that more aggressive measures were available and would have been used had Plaintiff really suffered from the level of pain that he claimed. Dr. Hesseltine did not mention any. Nor did Dr. Holmes, the reviewing physician. According to Plaintiff, he had undergone surgery to remove one of his extra ribs and could have undergone a similar procedure to remove the other one. (AR 24-29.) He testified, however, that he did not have the second surgery because his doctor told him it would be risky and because he did not have insurance and could not afford it. (AR 28-29.) Assuming that Plaintiff's testimony about this surgery amounted to ...


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