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Parmasivan Gounder v. Michael J. Astrue

January 29, 2013


The opinion of the court was delivered by: Ralph Zarefsky United States Magistrate Judge



Plaintiff had surgery on both his lower back and his upper back, but still claimed that he had back pain, that the pain sometimes radiated to other parts of his body, and that he was unable to work. That is what his treating physician said also. The Administrative Law Judge did not believe either Plaintiff or the treating physician, and found that Plaintiff could perform certain jobs that were plentiful enough in the economy, and therefore that Plaintiff was not disabled. The Administrative Law Judge erred, and Plaintiff is entitled to an award of benefits.

This case is much like Holohan v. Massanari, 246 F.3d 1195 (9th Cir. 2001). There the Court of Appeals noted that the Administrative Law Judge had selectively relied on certain entries in the medical record while downplaying others, 246 F.3d at 1207, and further used the selectivity, among other errors, in wrongly rejecting the opinion of a treating physician, 246 F.3d at 1208. As there, the Administrative Law Judge here ignored many parts of the record that would have given credence to Plaintiff and his doctor. In doing so, he acted contrary to the teachings of the Ninth Circuit.

It has long been settled that, unless the claimant is a malingerer, his claims of excess pain cannot be discredited absent specific and legitimate reasons for doing so, assuming that the impairments can reasonably give rise to the pain. Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) (en banc). The Administrative Law Judge found that Plaintiff had severe impairments of "cervical and lumbar degenerative disc disease status post fusion and diskectomy." [AR 10] No one doubts that disc disease can produce pain, and it is also clear that pain is idiosyncratic and not subject to objective measurement. Fair v. Bowen, 885 F.2d 597 (1989). Therefore, the Administrative Law Judge was required to provide specific and legitimate reasons for disbelieving Plaintiff's assertions as to his symptoms. Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996).

Using formulaic language, the Administrative Law Judge here found that "the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." [AR 21-22] He then discussed the medical evidence, which, by itself would be insufficient to discredit a claimant's claims of pain; inconsistency with objective medical evidence can be one factor impeaching credibility, Rollins v. Massanari, 261 F. 3d 853, 857 (9th Cir. 2001), but it cannot alone suffice. Bunnell, 947 F.2d at 345; Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997); Fair , 885 F.2d at 602. The Administrative Law Judge then appended three reasons why "the course of medical treatment in this case does not bolster the claimant's credibility with respect to the degree of pain and other subjective complaints." [AR 24] Those were (1) unlike what one would expect "for a totally disabled individual," Plaintiff made relatively infrequent trips to his neurosurgeon for his neck and lumbar pain;

(2) Plaintiff failed to follow up on recommendations made by treating doctors, such as physical therapy after his lumbar surgery, suggesting that the symptoms may not have been as serious as Plaintiff asserted; and (3) Plaintiff's use of medications does not indicate that his pain is as serious as he asserts. [Id.]

These reasons were insufficient to discredit Plaintiff's descriptions of his subjective symptoms. The Court is not sure how frequently the Administrative Law Judge thinks a person beset with back pain should consult a neurosurgeon, but Plaintiff did, of course, consult a surgeon and undergo two significant surgeries, and he visited surgeons at least half a dozen times. Nor is it accurate to say that Plaintiff failed to follow up on recommendations of treating doctors, such as the recommendation that he pursue physical therapy after his lumbar surgery. The record indicates otherwise. A June 8, 2005 report from Dr. Chu states that "Plaintiff tried a session of physical therapy, had pain and stopped." [AR 163] A report two months later states that "Despite physical therapy and traction, he has not had improvement." [AR 161] It is clear, therefore, that Plaintiff at least tried physical therapy, as recommended by his medical professionals. The fact that it was not successful cannot legitimately be interpreted as meaning that Plaintiff failed to pursue physical therapy.

The Administrative Law Judge's third rationale for his conclusion that the course of Plaintiff's treatment discredits Plaintiff's statement of his subjective symptoms also does not withstand much scrutiny. The Administrative Law Judge stated that "the claimant's use of medications does not suggest the presence of an impairment which is more limiting than found in this decision." [AR 24] No medical expert voiced such an opinion, however, and an administrative law judge is not himself a doctor. Cf. Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15, 17 (1st Cir. 1996) ("With a few exceptions (not relevant here), an ALJ, as a lay person, is not qualified to interpret raw data in a medical record. [citations omitted]"); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (administrative law judge normally not permitted to go beyond record because he is not qualified as a medical expert). The determination of whether the medication was too little to match Plaintiff's claimed symptoms is not something within a judge's expertise. In addition, the factual statements that the Administrative Law Judge relied on in this area are not borne out by the record. The Administrative Law Judge stated [AR 24], as he had earlier in his decision [AR 23], that in May and June 2008 Plaintiff no longer was taking or being prescribed Vicodin; yet, while the page of the record cited by the Administrative Law Judge does not list Vicodin [AR 478], the same report covering the same date of medical evaluation lists Vicodin's generic equivalent. [AR 480] The Administrative Law Judge stated that Plaintiff "admitted that while he could take up to 8 pills a day, he only needed 4 to control his pain." [AR 23] Again, however, that is not a fair reading of the record. The reference to 8 pills a day comes from a February 5, 2009 doctor's note that says "I saw the pt initially on 8/22/06 and since then he has been stable on his use of Vicodin 5/500 (max 8/day) and satisfied." [AR 371] An earlier note on March 13, 2008 contains somewhat confusing information as at one point it seems to indicate that Plaintiff is not taking Vicodin [AR 489], at another point that he is taking Vicodin every 4-6 hours as needed [id.] and at a third point that "at last visit" he was taking 4 tablets daily. [AR 491] It is not reasonable to conclude from such a juxtaposition of records that Plaintiff "admitted" that his pain was controlled with only four pills a day, certainly over any lengthy period of time.

The Administrative Law Judge identified two other reasons for disbelieving that Plaintiff's activities were as limited as Plaintiff asserted. First, he said, limited daily activities cannot be verified objectively. In general, this is not necessarily so, as there can be testimony from percipient witnesses as to a claimant's activities. Moreover, to the extent it is true, it begs the question; the entire purpose of a credibility analysis is to assess a claimant's testimony as to matters that are not otherwise easily verifiable.

The Administrative Law Judge also said that, even if Plaintiff's activities were as limited as he asserted, that it was difficult to tie those limitations to Plaintiff's medical condition "in view of the relatively weak medical evidence and other factors discussed in this decision." [AR 24] The Court did not see "other factors" discussed; the focus of the decision is on the medical evidence. This reason for disbelieving Plaintiff, then, again comes down to the Administrative Law Judge's view that Plaintiff's condition is inconsistent with the medical evidence. As indicated above, that alone is not a sufficient basis for discrediting Plaintiff.

In addition, however, the Administrative Law Judge improperly used selective evidence to reach his conclusions. For example, he stated that, two weeks after Plaintiff's July 2004 lumbar surgery, Plaintiff reported "absolute complete alleviation of his bilateral lower extremity pain." [AR 22, citing AR 294] The next report the Administrative Law Judge cites is from April 2005 [AR 22], and thus the impression is that Plaintiff's lumbar spine problem had been completely resolved. However, there were several reports between these two dates that show a different situation. Thus, in September 2004 Plaintiff saw his neurologist who this time stated that Plaintiff had some mild pain in his right lower extremity and some pain in his left foot, even though this was dramatically improved from his preoperative status. [AR 292] Then in December 2004 Plaintiff again saw his neurologist, this time reporting that all the pain in his left leg was gone but that he still intermittently gets pain in his right lower extremity, although again stating that it was significantly improved from preoperative status. In February 2005 Plaintiff again saw his neurologist and again reported, despite improvement from his preoperative status, "some continued pain down his left lower extremity as well as his posterior knees bilaterally." [AR 287] While an administrative law judge is not required to discuss every piece of evidence, he is required to discuss evidence that is significant, Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) and, by citing only the first report post-surgery and not the subsequent ones, the Administrative Law Judge has left a misleading impression that the lumbar surgery completely cured the radiating pain. That was not the case.

In fact, when Plaintiff did see his doctor in April 2005, the doctor noted that, as to Plaintiff's lumbar spine, Plaintiff "reports mild, temporary improvement from the surgery, but reports that he has had progression of his symptoms over time," and that his pain radiated down the posterior aspect of his thigh and calf to his heel; the doctor noted that straight leg raising was positive in both legs, and that the doctor's impression was "possible recurrent lumbar stenosis." [AR 165-66] The only part of this report that the Administrative Law Judge mentioned, as to the lumbar spine, was the straight leg raising. [AR 22] The Administrative Law Judge did mention the results of a follow-up MRI, stating that there was "residual lateral recess and foraminal stenosis at the L4-5 bilaterally with a disc bulge to the left" [AR 22], but he did not indicate, as the MRI report does, that the lateral recess and foraminal stenosis were "significant" [AR 163] or the doctor's comment that, if physical therapy did not work "a re-exploration on the left could be entertained." [Id.]

A similar selectivity exists in the recitation of the evidence concerning Plaintiff's cervical spine. Thus, the Administrative Law Judge referenced the results of an MRI examination as reported on August 5, 2005, but characterized them in a slightly disparaging way: "Although physical examination yielded no more than mild deficits in neurological functioning, Dr. Chu recommended cervical diskectomy and fusion." [AR 22, citing AR 161; emphasis added.] Dr. Chu did not share this implication that the diskectomy was not justified by the results of tests of neurological functioning; in fact, Dr. Chu noted that Plaintiff's pain was aggravated with turning of the head and that Plaintiff's cervical range of motion was limited by pain, and he discussed with ...

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