United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER
ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
Plaintiff
Joy Aronson (“Plaintiff”) challenges the
Commissioner’s denial of her application for a period
of disability and disability insurance benefits
(“DIB”). For the reasons stated below, the
decision of the Commissioner is REVERSED and the action is
REMANDED for further proceedings consistent with this Order.
II.
PROCEEDINGS BELOW
On June
22, 2012, Plaintiff applied for DIB alleging disability
beginning November 14, 2007. (Administrative Record
(“AR”) 180-86). Her application was
denied initially on November 29, 2012, and upon
reconsideration on August 23, 2013. (AR 79-124.) On September
6, 2013, Plaintiff filed a written request for hearing, and a
hearing was held on October 8, 2014. (AR 43-78, 140-41.)
Represented by counsel, Plaintiff appeared and testified,
along with an impartial vocational expert (“VE”).
(AR 43-78.) On November 21, 2014, the Administrative Law
Judge (“ALJ”) found that Plaintiff had not been
under a disability, pursuant to the Social Security Act,
[1]
from November 14, 2007 through December 31, 2013. (AR 36.)
The ALJ’s decision became the Commissioner’s
final decision when the Appeals Council denied
Plaintiff’s request for review. (AR 1-6.) Plaintiff
filed this action on November 4, 2015. (Dkt. No. 1.)
The ALJ
followed a five-step sequential evaluation process to assess
whether Plaintiff was disabled under the Social Security Act.
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir.
1995). At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity from November 14,
2007, the alleged onset date (“AOD”), through
December 31, 2013, the date last insured (“DLI”).
(AR 27.) At step two, the ALJ found that through the DLI,
Plaintiff had the severe impairments of right shoulder
adhesive capsulitis and biceps tendinitis, degenerative disc
disease of the lumbar spine, multiple right and left thumb
and middle finger surgeries, a history of spontaneous rib
fracture in May and September 2011 due to osteoporotic
problems, and carpal tunnel syndrome with surgery on the
right hand in October 2011. (Id.) At step three, the
ALJ found that through the DLI, Plaintiff “did not have
an impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.”
(AR 29.)
Before
proceeding to step four, the ALJ found that through the DLI,
Plaintiff had the residual functional capacity
(“RFC”) to:
[P]erform light work . . ., including lifting up to 20 pounds
occasionally and 10 pounds frequently, standing and/or
walking up to 6 hours in an 8-hour workday, and sitting up to
6 hours in an 8-hour workday, with the following additional
restrictions: limited to occasional performance of postural
activities, no forceful gripping, grasping, torqueing with
the right upper extremity, and limited to occasional over the
shoulder movements with the right upper extremity.
(AR 29-30.)
At step
four, based on Plaintiff’s RFC and the VE’s
testimony, the ALJ found that through the DLI, Plaintiff was
capable of performing past relevant work as a sales director
and sales representative advertising. (AR 35.) Accordingly,
the ALJ did not proceed to step five, and instead, found that
Plaintiff was not under a disability from the AOD through the
date last insured. (AR 36.)
III.
STANDARD OF REVIEW
Under
42 U.S.C. § 405(g), a district court may review the
Commissioner’s decision to deny benefits. A court must
affirm an ALJ’s findings of fact if they are supported
by substantial evidence, and if the proper legal standards
were applied. Mayes v. Massanari, 276 F.3d 453,
458-59 (9th Cir. 2001). “‘Substantial
evidence’ means more than a mere scintilla, but less
than a preponderance; it is such relevant evidence as a
reasonable person might accept as adequate to support a
conclusion.” Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can
satisfy the substantial evidence requirement “by
setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Reddick v.
Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation
omitted).
“[T]he
Commissioner’s decision cannot be affirmed simply by
isolating a specific quantum of supporting evidence. Rather,
a court must consider the record as a whole, weighing both
evidence that supports and evidence that detracts from the
Secretary’s conclusion.” Aukland v.
Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)
(citations and internal quotations omitted).
“‘Where evidence is susceptible to more than one
rational interpretation, ’ the ALJ’s decision
should be upheld.” Ryan v. Comm’r of Soc.
Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
2005)); see also Robbins, 466 F.3d at 882 (“If
the evidence can support either affirming or reversing the
ALJ’s conclusion, we may not substitute our judgment
for that of the ALJ.”). The Court may review only
“the reasons provided by the ALJ in the disability
determination and may not affirm the ALJ on a ground upon
which he did not rely.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (citing Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)).
IV.
DISCUSSION
Plaintiff
contends that the ALJ: (1) failed to properly consider the
opinion of treating physician Neal S. ElAttrache, M.D.,
regarding her restrictions from using her right shoulder at
shoulder level for prolonged periods of time; the opinion of
treating physician Daniel Sanchez, M.D., regarding her
ability to rarely reach up above the shoulder; and the
opinion of consultative examiner Mark Wellisch, M.D.,
regarding her limitation to occasional pushing and pulling;
(2) erred in rejecting the conclusions or observations of
“other sources;” and (3) erred in the credibility
determination. (Joint Submission Regarding the Issues on
Appeal (“Joint Sub.”) at 4-9, 14, 15-17, 19-24,
30-31) (Dkt. No. 15).) The Commissioner contends that: (1)
the RFC for no forceful gripping, grasping or torqueing with
the right upper extremity and occasional over the shoulder
activities with the right arm “are reasonably
consistent with the medical evidence;” (2) any error in
not addressing the vocational report was harmless; and (3)
the ALJ’s credibility determination was proper and is
entitled to deference. (Joint Sub. at 9-14, 17-19, 24-30.)
A.
The ALJ Erred In Considering the Opinions of Dr.
ElAttrache, Dr. Sanchez, and Dr. Wellisch
Plaintiff
argues that the ALJ erred in not providing any reasons for
rejecting portions of the opinions of treating orthopedic
surgeon Dr. ElAttrache, treating physician Dr. Sanchez, and
examining physician Dr. Wellisch regarding restrictions on
the use of her right shoulder at and above shoulder level and
her ability to push and pull. (Joint Sub. at 5-9.) The
Commissioner argues that the RFC “sufficiently
captures” Plaintiff’s restrictions on use of her
right arm. (Id. at 9-14.) For the reasons set forth
below, the Court agrees with Plaintiff.
1.
Opinions of Dr. ElAttrache, Dr. Sanchez, and Dr.
Wellisch
The
record includes a physician’s statement and treatment
notes from Dr. ElAttrache. On October 29, 2008, Dr.
ElAttrache completed a form entitled, “Attending
Physician’s Statement Life and Disability
Insurance.” (AR 561-62.) He diagnosed Plaintiff with
right shoulder subacromial impingement and biceps tendinosis
with longitudinal biceps tear since November 14, 2007, and
noted a July 17, 2008 MRI revealing evidence of a
longitudinal tear of the biceps tendon in the occipital
groove. (AR 561.) He stated that he had treated Plaintiff
since July 31, 2008 on an as-needed basis, and her course of
treatment includes physical therapy, cortisone injection, and
monthly check-ups. (AR 561, 575.) He opined that Plaintiff
was capable of sedentary activity, with “no activity
that may aggravate or cause pain at right shoulder
[illegible] use of right upper extremity.” (AR 562.) He
opined that Plaintiff could not perform excessive driving,
flying in an airplane, moderate lifting, pushing, pulling,
and more than moderate computer work. (Id.)
In a
treatment note dated January 6, 2009, Dr. ElAttrache
recommended that Plaintiff “try to limit her
work-related activities and duties to functions that do not
require prolonged use of the arm at or above shoulder level,
do not require repetitive lifting, pushing, or
pulling.” (AR 354.) On June 25, 2009, Dr. ElAttrache
noted that Plaintiff has a history of adhesive capsulitis
with impingement and biceps tendonitis of the right shoulder.
(AR 348.) He noted “some mild occasional episodes of
recurrent capsular inflammation with recurrent activity done
at or above shoulder level such as driving, use of the mouse
for the computer, or certainly repetitive lifting
overhead.” (Id.) On examination, Dr.
ElAttrache
found mildly positive impingement signs to Neer and Hawkins
testing, slight stiffness at the end of her range of motion
with overhead extension at about 165 degrees, external
rotation at 90 degrees, and horizontal abduction lacking
about 5 degrees. (Id.) He found good strength of her
rotator cuff with some mild pain with heavy resistance
testing of abduction and thumb-down position for
supraspinatus testing. (Id.) There was mild
discomfort with Speed’s maneuver. (Id.) Dr.
ElAttrache found Plaintiff “well enough that she can do
her normal daily activities without any more aggressive
intervention, ” and recommended that she be
“permanently restricted for recurrent overhead pushing,
pulling, lifting and use of the right shoulder at shoulder
level for prolonged periods of time.” (Id.)
On
January 21, 2010 and June 19, 2012, Dr. Sanchez opined that
Plaintiff could walk and stand less than one hour, sit for
one to two hours, lift less than five pounds occasionally,
and required three to ten 30-minute rest periods during the
day. (AR 33, 505-06, 857-58.) He opined that Plaintiff was
limited with repetitive movements and pushing and pulling
with the right arm. (AR 857.) He opined that Plaintiff was
unable to work an eight-hour day. (AR 33, 506, 858.) On
August 29, 2014, Dr. Sanchez opined that Plaintiff was
capable of standing for 15 minutes, walking for 20 minutes,
and could not do prolonged sitting.[2] (AR 33, 1729-34.) She could
lift and carry less than five pounds, and she was not capable
of full time work. (AR 1731, 1733.) She could rarely reach up
above the shoulders. (AR 1731.)
Dr.
Wellisch conducted an orthopedic examination on October 15,
2012. (AR 1285-91.) He noted that Plaintiff indicated that
she could not do “repetitive acts with her right upper
extremity, ” but she could do most activities of daily
living with the assistance of her husband.” (AR 1285.)
A physical examination of the upper extremities revealed
slight tenderness anteriorly in the shoulders, but was
otherwise normal. (AR 1288.) Grip strength was noted to be 35
pounds on the right and 4 pounds on the left. (AR 1289.)
Motor strength in the upper extremities was 5/5, sensation
was well preserved, and reflexes were 2 and symmetrical.
(Id.) An x-ray of the right shoulder showed no
evidence of subluxation or degenerative changes in the
glenohumeral joint or acromioclavicular joint. (Id.)
Dr. Wellisch diagnosed right shoulder pain with probable
rotator cuff tendinopathy, degenerative facet disease in the
lumbar spine with chronic low back pain, and possible
tendinitis of the abductors of the right hip. (AR 1290.) He
opined that Plaintiff could lift and carry 20 pounds
occasionally and 10 pounds frequently, could occasionally
push and pull, could walk and stand six hours out of an
eight-hour day, could occasionally bend, crouch, stoop, and
crawl, and “[l]adder climbing is limited by shoulder
pain.” (Id.)
2.
Pertinent Law
An ALJ
is obligated to consider medical opinions of record, resolve
conflicts, and analyze evidence. Magallanes v.
Bowen, 881 F.2d 747, 750 (9th Cir. 1989); 20 C.F.R.
§ 404.1527(c). Courts give varying degrees of deference
to medical opinions based on the provider: (1) treating
physicians who examine and treat; (2) examining physicians
who examine, but do not treat; and (3) non-examining
physicians who do not examine or treat. Valentine v.
Comm’r, Soc. Sec. Admin., 574 F.3d 685, 692 (9th
Cir. 2009). A treating physician’s opinion is generally
entitled to greater weight than a non-treating
physician’s opinion, and an examining physician’s
opinion is generally entitled to greater weight than a
non-examining physician’s opinion. See Garrison v.
Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citations
omitted). If a treating physician’s opinion is
contradicted by another medical opinion, an ALJ must give
“specific and legitimate reasons” for rejecting
it. Orn, 495 F.3d at 633. If a treating
physician’s opinion is not contradicted, it may be
rejected only for “clear and convincing” reasons.
Lester, 81 F.3d at 830.
3.
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