Aronson v. Colvin

          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.

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