Fuentes v. Comm'r of the Soc. Sec. Admin.
| Decision Date | 07 January 2013 |
| Docket Number | Case No. SACV 11-1960 AJW |
| Court | U.S. District Court — Central District of California |
| Parties | JULIO FUENTES, Plaintiff, v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. |
Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.
The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. [See JS 2]. In a November 12, 2010 written hearing decision that constitutes the final decision of the Commissioner, an administrative law judge ("ALJ") found that plaintiff has the severe impairment of degenerative disc disease of the lumbar spine. [Administrative Record ("AR") 11]. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform a full range of light work. [AR
The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec.Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).
Treating source opinion
Plaintiff contends that the ALJ erred in failing to consider the opinion of his treating orthopedist, Mark Brown, M.D. [JS 2-3, 6-8].
Plaintiff saw Dr. Brown at the Orthopaedic Medical Group of Santa Ana, Inc. in Tustin, California from December 2000 through June 15, 2005, and in August 2007. [AR 183-198, 200-243, 280-307]. Dr. Brown summarized the background of plaintiff's injuries in various reports through the years. [See, e.g., AR 223-231, 281-283]. Plaintiff reported that while working for Quicksilver, he injured his back on March 18, 1998, September 9, 1999, October 13, 1999, and February 1, 2000 by pulling a pallet jack or by lifting heavy boxes. [AR 224]. Plaintiff said that he was terminated from Quicksilver in July 2000 for reasons unrelated to his back injuries. [AR 225].
Plaintiff was referred to Dr. Brown in December 2000 in connection with a workers' compensation claim. At plaintiff's initial examination on December 4, 2000, Dr. Brown concluded that plaintiff had "[l]umbar spine strain/sprain, rule out nerve root impingement." [AR 241]. He considered plaintiff"temporarily totally disabled"1 and ordered an MRI. [AR 225, 241-242].
On January 2, 2001, the MRI revealed moderate spinal stenosis at L4-5 with anterior and posterior indentation on the thecal sac, and mild relative stenosis at L2-3. [AR 180-181, 225]. The MRI also revealed a three to four millimeter disc protrusion at L2-3, and a moderate thecal sac indentation at L4-5 related to a four millimeter posterior disc protrusion. [AR 180-181, 225].
Progress reports indicate that Dr. Brown then saw plaintiff and instructed him to remain off work on January 15, 2001 [AR 197], February 19, 2001 [AR 195], and March 26, 2001 [AR 193]. On April 27, 2001, Dr. Brown reviewed plaintiff's medical records and concluded that he "should remain off of work, and is considered to be Temporarily Totally Disabled." [AR 234]. Dr. Brown instructed plaintiff to return for a follow-up visit three days later. [AR 234]. Plaintiff returned on April 30, 2001 and reported increased pain. [AR 191]. Dr. Brown again instructed him to remain off work until June 6, 2001. [AR 191].
Upon examination on June 6, 2001, Dr. Brown noted that plaintiff had normal heel-to-toe gait without limping, and that he was not wearing a back support. [AR 226]. However, there was tenderness over the midline lumbosacral area and over L5-S1 bilaterally, and he concluded that plaintiff's low back pain complaints appeared consistent with the findings in the MRI study. [AR 225-227]. Dr. Brown diagnosed plaintiff with lumbar spine strain/sprain, and a "3-4 mm disc bulge at L2-3, causing moderate right neural foraminal stenosis and a 4 mm disc bulge at L4-5, causing moderate canal stenosis." [AR 227]. Because plaintiff continued to have substantial pain and his condition seemed to have plateaued in responseto treatment, Dr. Brown rated plaintiff's disability status as "permanent and stationary."2 [AR 228]. Dr. Brown also indicated that plaintiff was precluded from "heavy lifting and repetitive bending and stooping" and "prolonged weightbearing activities." [AR 229].
Dr. Brown continued to see plaintiff, and instructed plaintiff to remain off work and maintained his "permanent and stationary" disability status on July 2, 2001 [AR 189, 290], August 13, 2001 [AR 187, 292], October 25 & 29, 2002 [AR 208-210, 217, 220, 296-298], January 15, 2003 [AR 205], and April 12, 2004 [AR 202, 302]. A June 15, 2005 progress report indicates that Dr. Brown saw plaintiff again for his persistent low back pain. [AR 185, 304]. His objective findings were that plaintiff's lumbar spine remained tender at L5-S1 and noted various flexion restrictions. [AR 304]. He prescribed plaintiff pain medication. [AR 304]. An August 13, 2007 progress report indicates that Dr. Brown saw plaintiff again for increased pain in his low back. [AR 183-184, 306]. Dr. Brown again noted tenderness in the lumbar spine at L4-5 and L5-S1 and prescribed pain medication. [AR 306-307].3
During the October 27, 2010 hearing, the ALJ asked the vocational expert ("VE") whether a hypothetical person who was able to perform light work4 could perform any of plaintiff's past work. TheVE stated that such a person could perform plaintiff's prior assembly position. [AR 37]. Plaintiff's counsel asked the VE to assume that the same hypothetical person could perform the lifting and carrying requirements of light work, but would be precluded from "prolonged weight-bearing, which would be standing or walking," as indicated in Dr. Brown's reports. [AR 38]. The VE testified that such a person would not be able to perform any of plaintiff's past work. [AR 38].
The ALJ summarized the medical evidence in his decision, including parts of Dr. Brown's medical reports and progress records. [AR 12-13]. The ALJ found that plaintiff's medically determinable impairment could reasonably be expected to cause the alleged symptoms, but discounted their severity because he found that plaintiff's statements were not wholly credible. [AR 13]. The ALJ found that plaintiff retained the RFC for "the full range of light work," in that he could "lift twenty pounds occasionally and ten pounds frequently, stand and walk six hours of an eight-hour workday, sit six hours of an eight-hour workday with normal breaks and occasional stooping . . ." [AR 11 (citing 20 C.F.R. § 404.1567(b))].
A treating physician's opinion is not binding on the Commissioner with respect to the existence of an impairment or the ultimate issue of disability. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). However, a treating physician's medical opinion as to the nature and severity of an individual's impairment is entitled to controlling weight when that opinion is well-supported and not inconsistent with other substantial evidence in the record. Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001); Holohan v. Massanari. 246 F.3d 1195, 1202 (9th Cir. 2001); see 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Social Security Ruling ("SSR") 96-2p, 1996 WL 374188, at *1-*2. Even when not entitled to controlling weight, "treating source medical opinions are still entitled to deference and must be weighed" in light of (1) the length of the treatment relationship; (2) the frequency of examination; (3) the nature and extent of the treatment relationship; (4) the supportability of the diagnosis; (5) consistency with other evidence in the record; and (6) the area of specialization. Edlund, 253 F.3d at 1157 & n.6 (quoting SSR 96-2p and citing 20 C.F.R. § 404.1527); Holohan, 246 F.3d at 1202.
If a treating source opinion is uncontroverted, the ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting it. If contradicted by that of another doctor, a treating or examining source opinion may be rejected for specific and legitimate reasons that are based on substantial evidence in the record. Batson v. Comm'r, Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.2004); Tonapetyan, 242 F.3d at 1148-1149; Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995).
The Commissioner has pointed to no opinion that conflicts with Dr. Brown's assessment, and there does not appear to be any conflicting report or opinion in the record. As the uncontroverted opinion of a treating physician and specialist in the relevant field of orthopedics, Dr. Brown's opinion is entitled to controlling weight, and the ALJ must provide clear and convincing reasons for rejecting it.
The ALJ did not do so. The ALJ summarized one of Dr. Brown's reports but did not provide any reasons, let alone clear and convincing reasons, for rejecting his...
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