CHARLES F. EICK, 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.
Plaintiff filed a complaint on February 6, 2018, seeking review of the Commissioner's denial of benefits. The parties consented to proceed before a United States Magistrate Judge on March 10, 2018. Plaintiff filed a motion for summary judgment on August 13, 2018. Defendant filed a motion for summary judgment on November 12, 2018. The Court has taken the motions under submission without oral argument.
Plaintiff, a former plumber, asserts disability since June 22, 2013, based on,
An Administrative Law Judge ("ALJ") reviewed the record and heard testimony from Plaintiff and a vocational expert (A.R. 15-26, 31-61). Plaintiff testified to pain and limitations of allegedly disabling severity (A.R. 39-56). The ALJ found that Plaintiff has "severe" lumbar degenerative disc disease, obesity, rib fractures and sleep apnea, but retains the residual functional capacity for a limited range of light work.
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards.
For the reasons discussed herein, the Court finds that the ALJ materially erred while assessing Plaintiff's credibility and the evidence from Plaintiff's treating physicians.
The record contains treatment notes of Plaintiff's monthly visits with treating physician Dr. Charles T. Chen, and other providers within the Beaver Medical Group, from June of 2013 through December of 2014 (A.R. 398-540).
Plaintiff went to a nurse practitioner on June 24, 2013, complaining of worsening back pain with left leg and toe numbness (A.R. 499). On examination, Plaintiff reportedly was obese, had tenderness in the left lumbar region, pain with toe maneuvers and flexion, and decreased sensation (A.R. 499-500). Plaintiff was diagnosed with back pain and gastroesophageal reflux disease ("GERD") (A.R. 500). Plaintiff was prescribed Tylenol with Codeine as needed for pain, scheduled for physical therapy, and given a note to be off work until the following Wednesday (A.R. 500-01).
Plaintiff followed up with Dr. Chen on July 25, 2013, after Plaintiff had been to the emergency room the day before for dizziness and weakness (A.R. 491).
When Plaintiff returned on August 22, 2013, Plaintiff reported high blood sugars, no significant relief from his first epidural injection, occasional chest pain and chest pressure on exertion with associated shortness of breath, back pain and pain down his arms and legs (A.R. 478). On examination, Plaintiff reportedly was obese with slight tachycardia and decreased range of motion in the lumbar spine (A.R. 479-80). Dr. Chen added diagnoses of sinus tachycardia, chest pain (not otherwise specified), back pain, diabetes mellitus with circulatory manifestation and diabetic angiopathy (A.R. 480-81). Dr. Chen prescribed Metroprolol for Plaintiff's heart, increased Plaintiff's Gabapentin and Metformin, and ordered Plaintiff off work for one month (A.R. 482).
Plaintiff followed up with Dr. Chen on September 24, 2013, after an emergency room visit for chest pain the previous month (A.R. 472).
Plaintiff returned to Dr. Chen on October 24, 2013, after Plaintiff had received a second epidural injection, and Plaintiff then reported that the injection had not helped his back pain "at all" (A.R. 467). Plaintiff complained of palpitations, back pain, muscle aches, pain down his arms and legs, and stiffness (A.R. 467). Plaintiff also reported that his blood sugar was still high and his heart rate was faster when his blood sugar was high (A.R. 467). Plaintiff said he wanted to have spine surgery, reporting persistent pain radiating down the L4-L5 dermatome, left worse than right (A.R. 467). Examination results were unchanged from prior visits, except for pain radiating down the L4-L5 dermatomes (A.R. 468). Dr. Chen prescribed Nesina for diabetes, requested authorization for a spine surgery consultation, and ordered Plaintiff off work for another month (A.R. 470).
Plaintiff went to the Beaver Medical Group urgent care on November 18, 2013, reporting symptoms of dizziness for approximately the past month and pain in the left upper back below the shoulder blade (A.R. 460, 465-66). Plaintiff was taking ibuprofen (A.R. 460). On examination, Plaintiff reportedly had no tenderness to palpation of his back (A.R. 460). Plaintiff was given IV fluids and assessed with dizziness, mild tachycardia, tobacco dependence, obesity and back pain (A.R. 460).
Plaintiff followed up with Dr. Chen on December 4, 2013, after a hospital visit for left-sided rib pain (A.R. 452).
Plaintiff went to urgent care on December 30, 2013, with complaints of dizziness, extreme fatigue and right hand numbness (A.R. 445-47). He was referred to the San Gorgonio Emergency Department for evaluation, where he presented the same day complaining of tingling in his right hand, dizziness, vertigo, tachycardia, chest pain and chronic low back pain (A.R. 378-80, 445). A chest x-ray reportedly showed "questionable" vascular congestion (A.R. 392). Plaintiff was diagnosed with benign positional vertigo, hand paraesthesias and chest pain of uncertain cause, and was ordered to follow up with Dr. Chen (A.R. 379, 384).
Plaintiff followed up with Dr. Chen on January 15, 2014 (A.R. 438). Plaintiff reportedly could not stand for more than 15 minutes without back pain (A.R. 438). On examination, Plaintiff reportedly was obese, in mild pain and distress, with slight tachycardia, decreased range of motion in the lumbar spine and burning pain radiating down the L4-L5 dermatomes (A.R. 439-40). Dr. Chen continued Plaintiff's lidocaine patch, ordered Plaintiff to follow up with Dr. Hopkins for surgery, and extended Plaintiff's disability for three additional months (A.R. 442).
Plaintiff presented to a nurse practitioner on February 5, 2014, with complaints of dizzy spells for the previous six months, causing unsteadiness and problems with walking (A.R. 434). On examination, Plaintiff reportedly had an unsteady gait, sinus tachycardia and obesity (A.R. 434-35). Plaintiff was sent to the emergency room at Redlands Community Hospital, where he complained of chest heaviness and dizzy spells (A.R. 304, 435). On examination, Plaintiff reportedly had mild dyspnea, tachycardia and a normal gait (A.R. 307-08). Apparently, a chest x-ray was normal, an EKG showed tachycardia, and an angiogram showed no evidence of pulmonary embolism (A.R. 311). Plaintiff was sent home and ordered to follow up with Dr. Chen for referral to a cardiologist, an ear nose and throat specialist and a neurologist for his ongoing tachycardia and dizziness (A.R. 312).
Plaintiff followed up with Dr. Chen on February 27, 2014, after Plaintiff had been hospitalized for fractured ribs (A.R. 426). Plaintiff reportedly had been diagnosed with chest pain, fractures of the left 8th and 9th ribs, pneumonia, diabetes mellitus type 2, hypertension, tachycardia, obesity, tobacco dependence, hyperlipidemia and chronic mild leukocytosis (probably secondary to tobacco use) (A.R. 426;
Plaintiff returned for his annual physical on March 12, 2014, reporting symptoms of benign positional vertigo (A.R. 418). On examination, Plaintiff reportedly had tenderness to palpation of his left ribs, a "slightly tachy" heart rate, obesity, decreased range of motion in the lumbar spine, mild nystagmus and a positive Baranay test (A.R. 419-20). Dr. Chen prescribed Triamterene-HCTZ for Plaintiff's vertigo, and again suggested Plaintiff follow up with specialists (A.R. 424).
Plaintiff returned on May 13, 2014, for stress echocardiogram and Holter monitor results, which reportedly were "fairly unremarkable" (A.R. 408).
Plaintiff went to urgent care on August 3, 2014, complaining of fatigue and a history of chronic back pain, and reporting difficulty getting out of bed or doing anything (A.R. 536). The doctor suspected that Plaintiff's Metoprolol dose might be causing some fatigue and possible depression, and ordered Plaintiff to taper down his dosage and to follow up with Dr. Chen (A.R. 536).
Plaintiff followed up with Dr. Chen on August 18, 2014, reporting that he had been taking more naps mid-day and falling asleep during the day despite sleeping a full eight-hour night (A.R. 526). Dr. Chen added diagnoses of fatigue/malaise and snoring, and referred Plaintiff for a sleep study (A.R. 526, 528-30).
Plaintiff returned on December 3, 2014, complaining of left-sided rib pain (A.R. 519). Plaintiff reportedly had a CPAP titration study scheduled (A.R. 519). Dr. Chen counseled Plaintiff on the importance of weight loss and treatment for apnea (A.R. 519). Plaintiff reportedly had been trying to lose weight so he could have spine surgery (A.R. 519). Dr. Chen added diagnoses of obstructive sleep apnea and Vitamin B12 deficiency, and referred Plaintiff for follow up regarding his sleep apnea (A.R. 522).
It appears that, beginning on March 4, 2015, Plaintiff sought weekly treatments with Dr. Pranav Mehta (A.R. 687). Dr. Mehta's treatment notes are not as detailed as those of some of the other providers.
Plaintiff followed up with Dr. Mehta on April 29, 2015, reporting continuing difficulty catching his breath, lots of stress and anxiety, and shortness of breath when he wakes up (A.R. 696). Dr. Mehta indicated that Plaintiff's dyspnea may be a component of anxiety, prescribed Ativan, and referred Plaintiff for pulmonary evaluation (A.R. 696).
On May 21, 2015, Plaintiff returned, reporting that he was dieting better and losing weight (A.R. 697). According to a July 23, 2015 treatment record, triglycerides were high, vitamin D level was normal, and diabetes was controlled by Glucophage and diet (A.R. 719). Plaintiff reportedly was taking Norco for pain (A.R. 719). Plaintiff returned on August 7, 2015, for a blood pressure check and "paper work" (A.R. 720;
Plaintiff followed up with Dr. Mehta on June 23, 2016, reporting that he had cut down on his Lopressor and was having major heart palpitations but no chest pain, dizziness or dyspnea (A.R. 724-25). Plaintiff returned on September 19, 2016, saying he had been coughing for three weeks (A.R. 726-27). He was encouraged to use his CPAP, his Lopressor was increased, and he was prescribed a steroid bronchiodilator (A.R. 726-28). Plaintiff returned on October 21, 2016 (A.R. 729). According to the record from this visit, Plaintiff's triglycerides were over 600 because Plaintiff had stopped his Tricor, Plaintiff's diabetes was uncontrolled, and his neuropathy had worsened (A.R. 729, 737). Dr. Mehta prescribed a different diabetes medication (A.R. 729).
In a letter dated August 7, 2015, Dr. Mehta stated that Plaintiff suffers "debilitating" conditions (
(A.R. 716).
Consultative examiner Dr. Vicente Bernabe prepared an "Orthopedic Consultation" dated March 9, 2015 (A.R. 585-90). Plaintiff complained of lower back pain since May of 2013, described as "sharp, throbbing pain" exacerbated by prolonged sitting, standing, walking, bending and lifting (A.R. 585). Dr. Bernabe reviewed Plaintiff's lumbar spine MRI (A.R. 585). Plaintiff had undergone physical therapy and epidural steroid injections and then was taking Hydrocodone and ibuprofen for his pain (A.R. 586). On examination, Dr. Bernabe noted no abnormal findings apart from tenderness to palpation of the lumbosacral junction and limited range of motion in the lumbar spine (A.R. 586-89). Dr. Bernabe diagnosed degenerative disc disease of the lumbar spine and lumbar musculoligamentous strain, and opined that Plaintiff can perform medium work (A.R. 589).
A state agency physician reviewed the record as of July of 2014, and found Plaintiff can perform light work with: (1) frequent balancing; (2) occasional climbing of ramps or stairs, stooping, kneeling, crouching and crawling; and (3) no climbing of ladders, ropes or scaffolds, and no exposure to hazards (A.R. 62-71). On reconsideration in March of 2015, another state agency physician reviewed the record, including Dr. Bernabe's opinion, and found the same residual functional capacity for light work, except that this physician also limited Plaintiff to occasional balancing and avoiding concentrated exposure to extreme heat, extreme cold and vibration (A.R. 73-82).
Plaintiff testified that he stopped working in June of 2013 due to back pain (A.R. 37-39). Plaintiff testified that he has constant lower back pain which radiates down both legs to his ankles, worse on his left side than his right, for which he lies down and stretches out to feel better (A.R. 41, 48-49, 55). He said he had been told that spine fusion surgery would pose a very high risk and would not rid him of the pain entirely (A.R. 41, 49-50). Plaintiff said he previously had tried physical therapy and two epidural injections with no relief, and currently was relying on pain pills (Hydrocodone) and ibuprofen (A.R. 41, 45-46, 51). Plaintiff said the Hydrocodone causes dizziness and lightheadedness, so he tries not to take it too often and instead lies in bed "constantly" (A.R. 45). Plaintiff testified that he has difficulty walking because he experiences pain with every step, and that, if he stands for 10 to 15 minutes, his leg will go numb (A.R. 41-42, 51). Plaintiff also said that, if he sits for more than 15 or 20 minutes, his back starts hurting from the weight pushing down on his spine (A.R. 42, 54). Plaintiff testified to breathing problems for which he uses two inhalers daily (A.R. 42). Plaintiff claimed he cannot sleep more than two hours at a time due to pain (A.R. 46).
Plaintiff testified that he spends most of his time lying in bed (A.R. 42, 52). He said he will get up and try to do chores like washing dishes, sweeping, or making something to eat, which he does in five-minute increments before lying back down (A.R. 42-44). Plaintiff estimated that he has stayed in bed an average of 21 hours a day since 2013 (A.R. 53). Plaintiff also said he does not do much outside the house except attend family holiday get togethers (A.R. 44, 46). Plaintiff also drives his son to work once or twice a week, a distance of approximately a mile and a half (A.R. 37). The only other activity Plaintiff reported was using his cell phone to talk to friends, play games and go on Facebook (A.R. 45).
Plaintiff testified he cannot work a normal eight-hour workday because he has to lie down and stretch out his back to ease his pain after sitting or standing (A.R. 54). Plaintiff was sweating at the hearing, and said he was experiencing pain and dizziness (A.R. 53-54).
Where, as here, an ALJ finds that a claimant's medically determinable impairments reasonably could be expected to cause some degree of the alleged symptoms of which the claimant subjectively complains, any discounting of the claimant's complaints must be supported by "specific, cogent" findings.
The ALJ discounted Plaintiff's testimony and statements as "not entirely consistent with the medical evidence and other evidence in the record" (A.R. 19-21). The ALJ stated that: (1) Plaintiff "has engaged in somewhat normal level activities" which "undermine the claimant's allegations of disabling functional limitations"; and (2) the medical evidence of record assertedly did not support Plaintiff's allegations because Plaintiff was "receiving routine and conservative treatment," and Plaintiff's allegations "were dramatized in comparison to the available objective evidence of record," which included findings that Plaintiff was able to walk without difficulty, had 5/5 strength, reported no back tenderness on some examinations, and had "multiple stable examinations" (A.R. 20-21, 23-24). As discussed below, these stated reasons for rejecting Plaintiff's subjective allegations are factually and legally infirm.
With regard to the first stated reason, inconsistencies between admitted activities and claimed incapacity properly may impugn the accuracy of a claimant's testimony and statements under certain circumstances.
Contrary to the ALJ's stated findings in the present case, Plaintiff's admitted activities of lying in bed, doing chores in five-minute increments before lying back down, using his cell phone, and driving a mile and a half once or twice a week are not "somewhat normal level activities" and cannot properly undermine Plaintiff's subjective complaints.
With regard to the ALJ's second stated reason, a lack of objective medical evidence can be a factor in discounting a claimant's subjective complaints, but cannot "form the sole basis."
Here, the ALJ characterized Plaintiff's allegations as "dramatized" in comparison to the available medical record, observing that Plaintiff alleged that he needed to lie in bed 21 out of 24 hours a day and made allegations of pain, but he was "documented as being capable of walking without difficulty and some examination showed no back tenderness[,] . . . he had 5/5 strength in his physical examinations[, and] [h]e had multiple stable examinations" (A.R. 23, 24). These isolated findings do not accurately capture the tenor of the medical record as a whole and, in any event, the findings are not inconsistent with Plaintiff's claimed disabling need for extensive bed rest. The findings are not a legally sufficient reason to discount Plaintiff's subjective complaints.
The ALJ also cited Plaintiff's allegedly "routine and conservative treatment" (A.R. 21). A limited course of treatment sometimes can justify the rejection of a claimant's testimony, at least where the testimony concerns physical problems.
In the present case, however, it is highly doubtful Plaintiff's treatment accurately may be characterized as "routine and conservative." As detailed above, the record shows that Plaintiff frequently sought treatment from several providers throughout the alleged disability period, followed up as ordered and complied with all non-surgical treatment suggestions, including physical therapy, narcotic pain medication, and multiple epidural injections. All the while, Plaintiff reported that the treatment had not significantly alleviated his back pain. Plaintiff's recommended treatment does not appear to have been "routine" or "conservative."
Dr. Chen and his staff ordered Plaintiff to remain off work from Plaintiff's initial visit in June of 2013 through at least April of 2014, due to Plaintiff's back pain (A.R. 442, 455, 470, 475, 482, 500). In January of 2014, Dr. Hopkins deemed Plaintiff "temporarily totally disabled" and in need of spine fusion surgery to return to a functional level that might permit work (A.R. 268-69). Dr. Steinmann similarly opined in March of 2014 that, without surgery, Plaintiff's condition is a "permanent weakness to his back" that renders him "unable to perform his occupational duties" (A.R. 272). Dr. Mehta opined in August of 2015 that Plaintiff cannot work (A.R. 716).
A treating physician's conclusions "must be given substantial weight."
First, the ALJ considered and rejected Dr. Hopkins' opinion as "not relevant" because the opinion allegedly was rendered "in the context of a workers' compensation case" (A.R. 23). Actually, the record does not reveal whether Dr. Hopkins' opinion was rendered in the context of a workers' compensation case, although the term in the opinion "temporarily totally disabled" is often used in workers' compensation law. In any event, the purpose for which a medical opinion is obtained "does not provide a legitimate basis for rejecting it."
Second, the ALJ did not mention Dr. Steinmann. It is error to fail to mention a treating physician who opined that the claimant cannot work.
Third, the ALJ gave "little weight" to Dr. Mehta's opinion, as "not consistent with the entire evidence of record including Dr. Mehta's own treatment notes" (A.R. 23). According to the ALJ, Dr. Mehta's treatment notes reflect only "routine and conservative treatment" (A.R. 23). As support for this conclusion, the ALJ referenced Plaintiff's treatment for fractured ribs, diabetes and chest pain (A.R. 23). These references are largely beside the point. Dr. Mehta's letter states that Plaintiff's debilitating conditions are "severe back pain" and dizziness, not fractured ribs, diabetes or chest pain (A.R. 716). Additionally, as discussed above, Plaintiff's treatment for his back pain does not appear to have been "routine" or "conservative."
An ALJ properly may discount a treating physician's opinions that are in conflict with treatment records or are unsupported by objective clinical findings.
No doctor discerned any specific inconsistency between Dr. Mehta's opinion and the "evidence of record." Drs. Hopkins and Steinmann both opined that Plaintiff cannot work without surgery (A.R. 269, 272). Dr. Bernabe and the state agency physicians reviewed the record
The ALJ also cited Plaintiff's assertedly "dramatized" subjective complaints as a basis for discounting Dr. Mehta's opinion (A.R. 23). An ALJ may reject a treating physician's opinion that is predicated on the properly discounted subjective complaints of the claimant.
The Court is unable to conclude that the ALJ's errors were harmless. "[A]n ALJ's error is harmless where it is inconsequential to the ultimate nondisability determination."
Remand is appropriate because the circumstances of this case suggest that further development of the record and further administrative review could remedy the ALJ's errors.
For all of the foregoing reasons,
LET JUDGMENT BE ENTERED ACCORDINGLY.
Plaintiff returned to Dr. Hopkins on January 14, 2014, reporting no changes (A.R. 267). Plaintiff was taking ibuprofen for his pain (A.R. 267). Examination results were unchanged from the prior visit (A.R. 267-68). Dr. Hopkins deemed Plaintiff "temporarily totally disabled," and indicated that Plaintiff wanted to undergo the fusion surgery to control his back pain and return to a functional status that might permit work (A.R. 268-69). Dr. Hopkins authorized surgery (A.R. 269).
On March 6, 2014, Plaintiff saw Dr. John Steinmann, another doctor at Arrowhead Orthopaedics (A.R. 270). Dr. Steinmann's examination findings were the same as Dr. Hopkins' findings, except that Dr. Steinmann noted that Plaintiff had positive Gower's sign and did not have reported areas of tenderness to palpation of the back (A.R. 271-72). X-rays of Plaintiff's lumbar spine reportedly showed slight wedging at L1 (A.R. 272). Dr. Steinmann diagnosed low back pain emanating from L4-L5 and recommended surgery for Plaintiff's "severe mechanical low back pain" with "single segment abnormalities or at most two-level motion on MRI scan" (A.R. 272). According to Dr. Steinmann, Plaintiff must either accept "a permanent weakness to his back or [rectify it] through a stabilization procedure" (A.R. 272). Dr. Steinmann opined that Plaintiff was medically suitable for the planned surgery (A.R. 272). Dr. Steinmann also opined that Plaintiff's condition "significantly interferes with his activities of daily living and he is unable to perform his occupational duties" (A.R. 272).
Plaintiff also consulted with cardiologist Dr. Thomas Makowski on April 24, 2014, for chest pain (A.R. 414). Testing showed rare premature ventricular contractions with one ventricular couplet, and complaints of pain with some sinus tachycardia but no "significant ST depression" (A.R. 414).
Plaintiff returned to the emergency room on April 21, 2015, complaining of chest pain, sweating profusely, feeling nauseated and feeling like he would pass out even though he was lying down (A.R. 624). There were no noted abnormalities on examination (A.R. 626-27). An EKG reportedly showed mild sinus tachycardia (A.R. 628-29). Plaintiff was advised to follow up with his primary care physician (A.R. 629).
Plaintiff followed up with Dr. Mehta on April 23, 2015, who recommended that Plaintiff go to Loma Linda University Health System for a second opinion and for an arteriogram to look for blockage (A.R. 635-85, 695). There, Plaintiff complained of intermittent chest pain for two weeks, and dizziness, shortness of breath, dyspnea, and light headedness (A.R. 635, 637, 641). No abnormal findings were reported on examination (A.R. 638, 643). However, an EKG reportedly was "abnormal" and showed T wave abnormality with a note to consider anterior ischemia (A.R. 638). A chest x-ray reportedly showed increased interstitial markings in the lungs most likely consistent with bronchitis or COPD (A.R. 639, 644). After a series of additional tests, Plaintiff was discharged with a diagnosis of chest pain and instructions to follow up with his primary care doctor and with a cardiologist within a week (A.R. 652-53).
