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Baltazar v. Berryhill

United States District Court, C.D. California

May 31, 2017

PEDRO BALTAZAR, JR., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER OF REMAND

          CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE

         Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied, and this matter is remanded for further administrative action consistent with this Opinion.

         PROCEEDINGS

         Plaintiff filed a Complaint on November 1, 2016, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on December 2, 2016.

         Plaintiff filed a motion for summary judgment on April 7, 2017. Defendant filed a motion for summary judgment on May 8, 2017. The Court has taken both motions under submission without oral argument. See L.R. 7-15; “Order, ” filed November 7, 2016.

         BACKGROUND

         On May 13, 2010, Plaintiff applied for disability insurance benefits and supplemental security income, alleging disability beginning January 14, 2005 (Administrative Record (“A.R.”) 152-62). Plaintiff presented, among other evidence, a July 24, 2006 report authored by his treating orthopedist, Dr. Michael P. Rubinstein (A.R. 441-44). Dr. Rubinstein opined, inter alia, that Plaintiff's orthopedic impairments restricted Plaintiff to work that would not require the lifting of more than 15 pounds (A.R. 443).

         On September 7, 2012, an Administrative Law Judge (“ALJ”) rejected Dr. Rubinstein's opinion regarding Plaintiff's lifting restriction (A.R. 26-27). The ALJ stated as reasons for this rejection the fact that Dr. Rubinstein's report had been “created for workers' compensation purposes” and the fact that Dr. Concepcion Enriquez, a non-treating physician, subsequently opined Plaintiff could perform “light exertional work, ” i.e. work requiring the lifting of 20 pounds[1] (A.R. 26-27). The ALJ identified certain light work jobs Plaintiff assertedly could perform, and, on that basis, denied disability benefits (A.R. 28-30). On April 3, 2014, the Appeals Council denied review (A.R. 1-3).

         On January 21, 2015, this Court reversed and remanded for further administrative proceedings (A.R. 797-807).[2] The Court held that the ALJ erred in connection with the ALJ's consideration of Dr. Rubinstein's opinion, stating:

The law is well established in this Circuit that a treating physician's opinions are entitled to special weight because a treating physician is employed to cure and has a greater opportunity to know and observe the patient as an individual. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). “The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for “clear and convincing” reasons. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996); Baxter v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991). Where, as here, the treating physician's opinion is controverted, it may be rejected only if the ALJ makes findings setting forth specific and legitimate reasons that are based on the substantial evidence of record. See, e.g., Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“A treating physician's opinion on disability, even if controverted, can be rejected only with specific and legitimate reasons supported by substantial evidence in the record.”); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987).
In July 2006, five months after he had performed surgery on plaintiff's right shoulder, Dr. Rubinstein issued an opinion about plaintiff's post-surgical functional abilities. (See AR 441-44.) Dr. Rubinstein opined that plaintiff's condition was “permanent and stationary” (i.e., that plaintiff had reached maximum medical improvement). (See AR 441.) Dr. Rubinstein also opined that plaintiff should be precluded from overhead work; constant repetitive use of the right arm; and lifting, pulling, or pushing more than 15 pounds. (See AR 443.)
The ALJ declined to credit Dr. Rubinstein's opinion for two reasons. One of the reasons proffered by the ALJ was that Dr. Rubinstein's opinion was created for worker's compensation purposes and “therefore was not specifically referring to the kinds of limitations to be considered when assessing disability under the Social Security laws and regulations.” (See AR 26.) However, it is well-settled that an ALJ must properly consider every medical opinion, without regard to its source or its criteria for disability. See Macri v. Chater, 93 F.3d 540, 543-44 (9th Cir. 1996); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir 1988); Booth v. Barnhart, 181 F.Supp.2d 1099, 1105 (C.D. Cal. 2002) (“[T]he ALJ may not disregard a physician's opinion simply because it was initially elicited in a state workers' compensation proceeding, or because it is couched in the terminology used in such proceedings.”); 20 C.F.R. §§ 416.927(c) and 404.1527(c) (“Regardless of its source, we will evaluate every medical opinion we receive.”); see generally McLeod v. Astrue, 640 F.3d 881, 886 (9th Cir. 2011) (ALJ was required to consider VA rating of disability even though the VA and SSA criteria for determining disability are not identical). Morever, the Court fails to see how the types of general and widely-understood limitations recommended by Dr. Rubinstein - in overhead work; repetitive use of the arm; and lifting, pulling, or pushing - could have any special meaning that would not apply to the Social Security context.
Accordingly, the Court finds that this was not a legally sufficient reason on which the ALJ could properly rely to reject Dr. Rubinstein's opinion.
The other reason proffered by the ALJ for rejecting Dr. Rubinstein's opinion was that, although Dr. Rubinstein's July 2006 opinion may have been reasonable for the period shortly after plaintiff's surgery, more recent evidence showed that plaintiff had a greater residual functional capacity. (See AR 26.) Specifically, the ALJ noted the more recent opinion of Dr. Enriquez, an examining physician who opined in April 2011 that plaintiff could perform the equivalent of light work. (See AR 26; see also AR 676-80.) The Court is mindful of authority that, as a general matter, a more recent medical opinion may have more probative value than an older opinion about a claimant's abilities. See, e.g., Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986); Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985); see also Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). However, this authority is applicable only if the record reflects that the claimant's condition had changed in the period between the two opinions. See Stone, 761 F.2d at 532 (finding that the most recent medical opinion was the most probative because the claimant's condition “was progressively deteriorating”); cf. Young, 803 F.2d at 968 (declining to afford greater weight to more recent medical report when “it is far from clear that [claimant's] condition was progressively deteriorating”). Here, the record is far from clear that plaintiff's shoulder condition improved after Dr. Rubinstein had issued his opinion so as to justify according greater weight to the more recent opinion of Dr. Enriquez. Indeed, the record contains almost no evidence about plaintiff's shoulder condition between the two opinions.[3]
Instead, the record appears to reflect only the presence of a conflict between the opinions of Dr. Rubinstein and Dr. Enriquez, which was merely determinative of the standard to be applied to the ALJ's proffered reasons for not crediting the opinion of Dr. Rubinstein, and was not a legally sufficient reason in itself. See Lester, 81 F.3d at 830 (in event of conflict in the medical opinion evidence, an ALJ still must provide legally sufficient reasons to reject a treating or examining physician's opinion); see also Widmark v. Barnhart, 454 F.3d 1063, 1066-67 and n.2 (9th Cir. 2006) (existence of a conflict among the medical opinions by itself cannot constitute substantial evidence for rejecting a treating physician's opinion).
In sum, the Court finds that reversal is warranted based on the ALJ's failure to properly consider the treating physician's opinion.

(A.R. 800-803). The Court remanded the matter for further administrative proceedings (A.R. 805-07).

         On August 30, 2016, the ALJ issued another decision (A.R. 696-705). Again, the ALJ rejected Dr. Rubinstein's opinion that Plaintiff is restricted to lifting no more than 15 pounds (A.R. 700, 702-03). Again, the ALJ stated that Dr. Rubinstein had rendered the opinion “in connection with the claimant's Workers' Compensation claim” (A.R. 702). Again, the ALJ gave “great weight” to the contrary opinion of Dr. Enriquez (A.R. 702-03). The ALJ also stated:

While the undersigned recognize [sic] claimant is limited in his capacity to lift, carry, push, and pull, physical examination was remarkable for only 20 percent reduction of range of motion and fully healed medical malleolar fracture (Exhibit 6F-17). Despite Dr. Rubinstein's limitation in 15 pounds weight limit, the claimant is disabled only 16% in Workers' Compensation claim, which has different rules and guidelines. Therefore, the opinions of Dr. Rubinstein are given partial weight (702).

         Again, the ALJ found Plaintiff could perform light work throughout the period of alleged disability (A.R. 700). However, based on an application of the Medical Vocational Guidelines (“the Grids”), the ALJ found Plaintiff disabled beginning on January 19, 2014 (the day before Plaintiff's 55th birthday) (A.R. 704-05 (applying Grids Rule 202.02)). The ALJ found Plaintiff not disabled prior to January 19, 2014 (A.R. 705). If Plaintiff were limited to sedentary work rather than light work, the Grids would conclusively presume Plaintiff disabled on January 20, 2009 (his 50th birthday). See Grids Rule 201.10.

         STANDARD ...


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