(SS) Lundgren v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 CURT ALLEN LUNDGREN II, Case No. 1:18-cv-01033-JDP 9 Plaintiff, ORDER ON SOCIAL SECURITY APPEAL 10 v. 11 12 C ommissioner of Social Security, Defendant. 13 14 Claimant has requested judicial review of the Social Security Administration’s (“SSA”) 15 denial of his application for a period of disability and disability insurance benefits. On October 16 22, 2019, I heard argument from the parties. Having considered the parties’ arguments, the 17 record, and applicable law, I will remand this matter for further consideration by the 18 Administrative Law Judge (“ALJ”). 19 On appeal, I ask whether substantial evidence supports the Commissioner’s factual 20 findings and whether the Commissioner applied the proper legal standards. 42 U.S.C. § 405(g). 21 Claimant argues that remand is required to correct alleged flaws in the ALJ’s evaluation of the 22 opinions of two doctors: Bruce E. Fishman, an orthopedic surgeon who examined claimant and 23 who had served as an Agreed Medical Examiner in the context of a workers’ compensation claim, 24 and Marshall S. Lewis, claimant’s treating physician. The ALJ accorded no weight to the 25 opinions of Dr. Fishman and “little weight” to Dr. Lewis’ opinion. 26 In evaluating whether an ALJ’s decision to discount the opinion of a doctor is supported 27 by substantial evidence, the applicable standard depends on the extent of contact that the doctor 28 1 had with the claimant and whether the doctor’s opinion is contradicted by that of another doctor. 2 See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Here, as discussed at oral argument, the 3 same standard applies for both doctors1: the ALJ may reject their opinions only for “specific and 4 legitimate reasons” supported by substantial evidence. See id. 5 As best I can determine, the ALJ rejected the opinions of Dr. Fishman because she found 6 them to be (1) “self-contradictory and inconsistent”; (2) “not supported by clinical evidence of 7 symptomatology supporting greater limitations in the claimant’s ability to lift, carry, push, or 8 pull”; (3) “predicated on a set of considerations found in the Worker’s Compensation system”; 9 (4) generally undergirded by “insufficient objective support” and dependent on claimant’s “self- 10 reported complaints, rather than on imaging, clinical reports, or other medical evidence”; and (5) 11 devoid of a “function-by-function determination, with regard to the claimant’s residual capacity.” 12 AR 20. 13 Although the ALJ provided a host of reasons for rejecting Dr. Fishman’s opinions, several 14 are problematic. The ALJ’s first two stated reasons—internal inconsistency and lack of evidence 15 for limits on lifting, carrying, pushing and pulling—appear to stem from a mistaken belief that 16 Dr. Fishman completed the two “Functional Capacities Assessment” forms included with his 17 April 5, 2013 opinion. AR 706, 708. In fact, claimant—rather than the doctor—filled out these 18 forms, and any internal contradictions or lack of supporting clinical evidence can hardly be held 19 against Dr. Fishman.2 20 The ALJ’s third3 reason for rejecting Dr. Fishman’s opinion is that it originated from the 21 workers’ compensation context. This reason is troubling, and ultimately unsound. The criteria 22 1 In the Ninth Circuit, doctors are classified either as treating doctors, examining but not treating 23 doctors, or non-examining doctors, with treating doctors’ opinions generally accorded the most weight. Although the ALJ described Dr. Fishman as a treating physician, AR 19, claimant 24 concedes that he is better classified as an examining physician. Dr. Lewis was a treating doctor. Both doctors’ opinions were contradicted—for example by the opinion of Dr. Rajeswari Kumar, 25 see AR 22-23—and the “specific and legitimate” standard applies to both. See Lester, 81 F.3d at 26 830. 2 The ALJ’s mistake is understandable. Only claimant’s signature shows that he completed the 27 form, and his handwriting is hard to make out, except for the “II” at the end of his name. 3 Here, and throughout this order, I am using my own numbering system, laid out two paragraphs 28 above. 1 determining workers’ compensation eligibility differ from those that drive an SSA disability 2 determination, see Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th 3 Cir. 1988), and a disability determination in a workers’ compensation proceeding does not bind 4 SSA, but this does not necessarily mean that “observations and findings made in [reports from the 5 workers’ compensation process] . . . are . . . of limited probative value” in disability proceedings. 6 AR 21 n.1. Instead, records generated by doctors in workers’ compensation proceedings should 7 be treated like other medical records in evidence before the ALJ. To the extent that the ALJ 8 discounted Dr. Fishman’s opinions simply because they came from the workers’ compensation 9 context, the ALJ erred. See Bowser v. Comm’r of Soc. Sec., 121 F. App’x 231, 241-44 (9th Cir. 10 2005) (“[T]he ALJ may not ignore a doctor’s medical opinion merely because it was issued in a 11 workers’ compensation context[; i]nstead, the objective medical findings contained in such 12 opinions are to be evaluated as any other medical opinion.”); Carter v. Chater, 99 F.3d 1145, n.1 13 (9th Cir. 1996) (unpublished) (“[T]he ALJ erred by considering the fact that most of Carter’s 14 medical records were generated for her Workers’ Compensation claim.”). 15 The ALJ’s remaining reasons for rejecting Dr. Fishman’s opinions are not enough to 16 convince me that the above-discussed errors were harmless, since I have no way to know whether 17 the ALJ’s disability determination would have been different had she recognized that claimant 18 completed the assessment forms that she found to be internally inconsistent, or had she 19 appreciated the need to evaluate a medical opinion from the workers’ compensation process under 20 the routine criteria that guide the weighing of medical opinions in this circuit. Remand is 21 therefore required. 22 In case it is helpful on remand, I will briefly address the ALJ’s consideration of Dr. 23 Lewis’ opinion. I find that the ALJ provided specific and legitimate reasons supported by 24 substantial evidence in the record for discounting this opinion. The ALJ discusses Dr. Lewis’ 25 statements over the course of several pages—AR 21-22, 24-25—and summarizes her reasons for 26 according his opinion little weight in a 13-line paragraph. She provides several reasons for 27 discounting his opinion, including (1) a perceived mismatch between the severity of the 28 limitations that Dr. Lewis attributes to claimant and the minimal follow-up treatment 1 || recommended, (2) a lack of clinical support for purported upper extremity limitations, (3) a lack 2 | of mental health treatment that might have supported a mental health impairment, and (4) the 3 | delay between Dr. Lewis’ assessment and his last treatment of claimant. These stated reasons 4 | find support in the record. 5 For the reasons stated in this opinion, I remand this case so that SSA can consider 6 | appropriately the opinion of Dr. Fishman. The clerk of court is directed (1) to enter judgment in 7 | favor of claimant Curt Allen Lundgren IJ and against defendant Commissioner of Social Security, g | and (2) to close this case. 9 10 IT IS SO ORDERED. Dated: _ October 30, 2019 —N prssann — 12 UNI STATES MAGISTRATE JUDGE 13 14 15 | No. 200. 16 17 18 19 20 21 22 23 24 25 26 27 28