Cornelius v. Colvin

Filing 30

ORDER that the final decision of the Commissioner of Social Security is VACATED and REMANDED to the Commissioner of the Social Security Administration for further proceedings consistent with this order. Signed by Judge Steven P Logan on 9/19/2014. (See Order for details)(ALS)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Kristoffer Shaun Cornelius, 9 10 Plaintiff, vs. 11 12 13 Carolyn W. Colvin, Acting Commissioner of Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-13-00535-PHX-SPL ORDER 16 Plaintiff Kristoffer Shaun Cornelius seeks judicial review and reversal of the final 17 decision of the Commissioner of the Social Security Administration (“SSA”) denying his 18 application for Social Security disability benefits.1 19 I. Background 20 On March 29, 2010, Plaintiff filed an application for Social Security disability 21 insurance benefits and supplemental security income under Title II and Title XVI of the 22 Social Security Act. (AR2 30, 208-15.) Plaintiff alleges that he became unable to work 23 on March 1, 2010, due to his disabling conditions of attention deficit hyperactivity 24 disorder (“ADHD”), depression, anxiety, obsessive-compulsive disorder (“OCD”), 25 bipolar disorder, post-traumatic stress disorder (“PTSD”), and sleep deprivation. (AR 26 1 27 28 The request for oral argument is denied because the issues have been fully briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 2 Administrative Record 1 132, 136.) On August 12, 2010, the SSA denied Plaintiff’s application (AR 132-39), and 2 on December 17, 2010, the SSA denied Plaintiff’s request for reconsideration (AR 141- 3 47). Pursuant to Plaintiff’s request (AR 148-49), a hearing was held on November 29, 4 2011, before Administrative Law Judge (“ALJ”) Joan G. Knight (AR 46-82). 5 Applying the five-step sequential framework,3 on January 4, 2012, the ALJ issued 6 a decision ruling that Plaintiff is not disabled and is not entitled to disability benefits. 7 (AR 30-41.) At step one, the ALJ found that Plaintiff had not engaged in substantial 8 gainful activity since March 1, 2010, his alleged disability onset date. (AR 32.) At step 9 two, the ALJ found that Plaintiff had the following severe impairments: “bipolar disorder, 10 NOS,4 generalized anxiety disorder, attention deficit hyperactivity disorder, alcohol 11 dependence, in reported remission since July 15, 2011, and amphetamine dependence, in 12 reported remission since July 15, 2011.” (AR 32.) 13 At step three, the ALJ found that Plaintiff’s impairments did not meet or equal one 14 of the listed impairments described in 20 C.F.R. § 404, Subpart P, Appendix 1. (AR 33- 15 34.) In making this determination, the ALJ considered the degree to which claimant’s 16 17 18 19 20 21 22 23 24 25 26 27 3 In deciding whether a claimant is disabled and eligible for Social Security disability benefits, an ALJ employs a five-step sequential analysis, determining: (1) whether the claimant is doing substantial gainful activity; (2) whether the claimant has a severe medically determinable physical or mental impairment or combination of impairments that has lasted for more than 12 months; (3) whether the impairment meets or equals’ one of the listings in the regulations; (4) whether, given the claimant’s residual functional capacity, the claimant can still do his or her past relevant work; and (5) whether the claimant can make an adjustment to other work. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (citing 20 CFR §§ 404.1520, 416.920). See also 42 U.S.C. § 423(d)(1)(a). “If a claimant is found to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The claimant bears the burden of proof at steps one through four of the sequential process. Id.; Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). At step five, the burden shifts to the Commissioner to show that the claimant can perform other substantial gainful work that exists in the national economy. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 721. 4 28 NOS stands for “Not Otherwise Specified.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 381 (4th ed. TR 2000). 2 1 mental impairments interferes which the four broad functional areas (referred to as 2 “paragraph B” listing criteria). See 20 C.F.R. §§ 404.1520a(c), 416.920a(c). In areas of 3 activities of daily living, the ALJ found that Plaintiff had mild restrictions; in the area of 4 social functioning, the ALJ found that Plaintiff had mild difficulties; in the area of 5 concentration, persistence, or pace, the ALJ found Plaintiff had moderate difficulties; and 6 in the area of episodes of decompensation, the ALJ found Plaintiff had two episodes of 7 decompensation. (AR 33-34.) 8 At step four, the ALJ found that Plaintiff had the residual functional capacity5 9 (“RFC”) “to perform a full range of work at all exertional levels but with the following 10 nonexertional limitations: the claimant is capable of simple, unskilled work.” (AR 34.) 11 The ALJ stated that the RFC assessment reflected “the degree of limitation the [ALJ 12 found] in the ‘paragraph B’ mental function analysis.” (AR 34.) Based on his residual 13 functional capacity finding, the ALJ found that Plaintiff could no longer perform his past 14 work. (AR 39.) At step five, the ALJ found that Plaintiff could perform other jobs that 15 exist in significant numbers in the national economy. (AR 40.) The ALJ therefore 16 concluded that Plaintiff was not disabled as defined by the Social Security Act. (AR 41.) 17 On February 7, 2013, the Appeals Council denied Plaintiff’s request for review, 18 and the ALJ’s decision therefore became the final decision of the Commissioner of the 19 SSA. (AR 2-4.) Having exhausted the administrative review process, on March 13, 20 2013, Plaintiff sought judicial review of the ALJ’s decision by filing a Complaint in this 21 Court pursuant to 42 U.S.C. § 405(g). (Doc. 1.) 22 II. Standard of Review 23 The district court has the “power to enter, upon the pleadings and transcript of 24 record, a judgment affirming, modifying, or reversing the decision of the Commissioner, 25 with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The district 26 court reviews the ALJ’s decision under the substantial evidence standard and must affirm 27 5 28 A claimant’s residual functional capacity is defined as the most he or she can do despite his or her limitations. 20 C.F.R. § 404.1545(a)(1). 3 1 the decision if it is supported by substantial evidence and it is free from legal error. Orn 2 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Marcia v. Sullivan, 900 F.2d 172, 174 (9th 3 Cir. 1990). Substantial evidence means more than a mere scintilla, but less than a 4 preponderance; “it is such relevant evidence as a reasonable person might accept as 5 adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 6 2007); see also Reddick, 157 F.3d at 720. Even if the ALJ erred, however, “[a] decision 7 of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 8 676, 679 (9th Cir. 2005). 9 In reviewing the ALJ’s decision, the district court considers the record as a whole, 10 weighing both the evidence that supports and that which detracts from the ALJ’s 11 conclusions. Reddick, 157 F.3d at 720; Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 12 1993); Orn, 495 F.3d at 630. Where “the evidence can reasonably support either 13 affirming or reversing a decision, [the district court] may not substitute its judgment for 14 that of [the ALJ].” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). See also 15 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). It reviews “only the reasons 16 provided by the ALJ in the disability determination and may not affirm the ALJ on a 17 ground upon which he did not rely.” Orn, 495 F.3d at 630 18 III. Discussion 19 Arguing that this case should be remanded for an award of benefits, Plaintiff 20 claims that the ALJ erred: (1) by failing to incorporate adopted medical opinion evidence; 21 (2) by improperly rejecting medical opinion evidence; and (3) by improperly rejecting 22 Plaintiff’s testimony regarding his impairments. (Docs. 26, 28.) In response, Defendant 23 agrees that the ALJ erred in resolving her findings on medical opinion evidence, but 24 disputes whether the ALJ would be required to find Plaintiff disabled. 25 Therefore, Defendant argues that this case should be remanded for further proceedings. 26 (Id.) (Doc. 27.) 27 A. Residual Functional Capacity Assessment 28 First, the ALJ erred by failing to discern the limitations that where accounted for 4 1 in determining Plaintiff had a RFC to perform “simple, unskilled work.” (AR 34.) See 20 2 CFR § 404.1520a(e). In determining a claimant’s RFC, an ALJ must consider the nature 3 and extent of a claimant’s mental limitations and restrictions to determine his ability to 4 work on a regular and continuing basis. 5 404.1545(a)(2). “A limited ability to carry out certain mental activities, such as 6 limitations in understanding, remembering, and carrying out instructions, and in 7 responding appropriately to supervision, coworkers, and work pressures in a work setting, 8 may reduce [a claimant’s] ability to do past work and other work.” 20 C.F.R. § 9 416.945(c). 20 C.F.R. § 416.945(c); 20 C.F.R. § 10 In her decision, the ALJ found that Plaintiff was moderately limited in 11 concentration, persistence, or pace.6 (AR 33.) In making this finding, the ALJ relied on 12 opinions of Sheri Tomak, Psy.D., and Sharon Steingard, D.O., which she accorded 13 significant weight. (AR 33, 37-38, 101-128, 421-427.) Dr. Steingard found Plaintiff’s 14 score on the “Mini-Mental State Examination” suggested cognitive impairment, his 15 “[p]ersistence will be poor” as he does not have any history of sustaining work or 16 “maintaining appropriate adult responsibilities,” and has “limitations in understanding 17 social cues and disregards some social norms.” (AR 426-427.) Dr. Tomak opined that 18 Plaintiff was moderately limited in his ability to understand, remember, and carry out 19 detailed instructions, maintain attention and concentration for extended periods, perform 20 activities within a schedule, complete a normal workday and workweek without 21 interruptions from psychologically based symptoms and to perform at a consistent pace 22 without an unreasonable number and length of rest periods, and respond appropriately to 23 changes in the work setting. (AR 109-11.) 24 The ALJ did not address however, whether Plaintiff could perform “simple, 25 unskilled work” despite his functional limitations in concentration, persistence, or pace. 26 6 27 28 “Concentration, persistence, or pace” refers to the “ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings.” 20 C.F.R. § 404, Sub. P, App. 1 § 12.00(c)(3). 5 1 “The basic mental demands of competitive, remunerative, unskilled work include the 2 abilities (on a sustained basis) to understand, carry out, and remember simple 3 instructions; to respond appropriately to supervision, coworkers, and usual work 4 situations; and to deal with changes in a routine work setting.” SSR 85-15 (emphasis 5 added). See also 20 C.F.R. § 404.1568 (“Unskilled work is work which needs little or no 6 judgment to do simple duties that can be learned on the job in a short period of time.”). 7 The ability to meet the mental demands to perform unskilled “simple tasks” may be 8 limited by “concentration, persistence, or pace” if an individual cannot complete simple 9 tasks “at a consistent pace without an unreasonable number and length of rest periods, or 10 without undue interruptions or distractions.” 20 C.F.R. Part 404, Subpt. P, App. 1 § 11 12.00(c)(3). Although the ALJ discussed the medical evidence of record, she did not set 12 forth her findings regarding Plaintiff’s specific limitations in concentration, persistence, 13 or pace, nor did she provide a reasoned bridge between his limitations and his ability to 14 perform simple, unskilled work. Therefore, the ALJ erred in her assessment of Plaintiff’s 15 RFC. 16 B. Vocational Expert Testimony 17 The ALJ further erred in failing to take into account all of Plaintiff’s limitations in 18 propounding hypotheticals to the vocational expert. An ALJ must include all restrictions 19 in the hypothetical question posed to the vocational expert, including moderate 20 limitations in concentration, persistence, or pace. 20 C.F.R. §§ 404.1545, 416.945; 21 Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989); Valentine v. Comm’r of Soc. 22 Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (a hypothetical that fails to take into 23 account a claimant’s limitations is defective). 24 The ALJ first posed a hypothetical describing a person who, in performing 25 unskilled work, is “restricted to performing simple work tasks.” (AR 77.) This 26 hypothetical was inadequate. The medical opinions adopted by the ALJ suggest that 27 Plaintiff’s deficiencies in concentration, persistence, or pace limit his ability to carry out 28 work tasks on a continued basis regardless of the nature or complexity of the work to be 6 1 performed. See O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010) (“The 2 ability to stick with a given task over a sustained period is not the same as the ability to 3 learn how to do tasks of a given complexity.”); Stewart v. Astrue, 561 F.3d 679 (7th Cir. 4 2009); Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996) (holding “simple jobs” was 5 insufficient to cover concentration, persistence, or pace deficiencies). For this reason, the 6 ALJ’s second more restrictive hypothetical of an individual limited “to performing 7 simple, repetitive tasks” also did not adequately incorporate Plaintiff’s limitations. (AR 8 77.) O’Connor-Spinner, 627 F.3d at 620 (generally, “employing terms like ‘simple, 9 repetitive tasks’ on their own will not necessarily exclude from the VE’s consideration 10 those positions that present significant problems of concentration, persistence and pace”). 11 Because the ALJ failed to direct the vocational expert to the totality of Plaintiff’s 12 limitations, the expert’s testimony had “no evidentiary value to support a finding that 13 [Plaintiff] can perform jobs in the national economy.” DeLorme v. Sullivan, 924 F.2d 14 841, 850 (9th Cir. 1991). Having relied on the vocational expert’s opinion, the ALJ’s 15 finding that Plaintiff was not disabled was not based on substantial evidence. 16 C. 17 Finding there are outstanding issues that must be resolved before a determination 18 of disability can be made, the Court concludes that remanding this case for further 19 proceedings, rather than for an award of benefits, is appropriate. An ALJ’s decision shall 20 be reversed and remanded for the calculation and award of benefits only where: “(1) the 21 record has been fully developed and further administrative proceedings would serve no 22 useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 23 evidence, whether claimant testimony or medical opinion; and (3) if the improperly 24 discredited evidence were credited as true, the ALJ would be required to find the 25 claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014); 26 see also Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996); Swenson v. Sullivan, 876 27 F.2d 683, 689 (9th Cir. 1989). 28 Remand for Further Proceedings Plaintiff first argues that Dr. Steingard’s opinion, if credited, is a basis for 7 1 remanding this case for a determination of benefits. If such evidence were credited, 2 however, it is not clear that Plaintiff would be found disabled on remand. At the 3 conclusion of the hearing, Plaintiff’s counsel posed two hypotheticals to the vocational 4 expert incorporating the opinion of Dr. Steingard as follows: 5 6 7 8 9 10 11 12 13 14 15 16 [U]nder understanding and memory, “The score on the MiniMental Status Exam does suggest cognitive impairment. The score is 22 out of 20. Psychological testing would be helpful to further assess concentration IQ and the possibility of learning disability.” The next section is the sustained concentration and persistence: “Persistence will be poor. He does not have any history of sustaining work. He does not have a history of maintaining appropriate adult responsibilities. He put little effort into some of the tasks on the Mini-Mental Status Examination. He was distracted by the phone ringing in the interview. Social interaction: interaction is limited but not impaired. He seems to have some limitations in understanding social queues and disregards some social norms such as not eating in the waiting room and not eating in a doctor’s office. Interaction is not precluded. He was otherwise respectful. He did not display emotional ability adaptation. Cognitively, he can perform simple and repetitive tasks. He can be a passenger in a private vehicle. He is capable of using public transportation. He should not be managing benefits if deemed eligible to receive them.” 17 Would you agree that a person with those limitations would be precluded from all work on a sustained basis? 18 A 19 Q There was no emotional ability. He did not display emotion ability during the evaluation. 20 21 22 23 24 25 26 27 A Am I to understand there’s no emotional ability? During the evaluation. Q And I guess I – in answering this question, I would like you to focus on the sustained concentrating and persistence, where it’s persistence will be poor. A Right. I’m also thing [sic] about the little effort. Q And I would just ask you to take that at face value because he does – the doctor, she doesn’t say why there was little effort, whether it was related to illness or attitude or anything. So just take it at face value that during the – I’ll read it again: “He puts little effort into some of the tasks on the Mini-Mental Status Examination.”\ 28 8 1 A 2 Q “He was distracted by the phone ringing in the interview.” 3 Mm-hmm. 5 A I’m having trouble answering that in that there seems to be a variance in information. Because we don’t know what little effort – when she’s saying he displayed ‘little effort’ on some tasks, we don’t know what that’s due to. 6 Q Well, let me ask a different question then. 7 A Okay. 8 Q Let’s just take the statement “persistence will be poor.” Based on your experience as a vocational expert, would you agree that someone with poor persistence would have trouble maintaining employment? 4 9 10 11 A Yes, I would. 12 (AR 79-81.) Here, in response to counsel’s hypotheticals, the vocational expert found Dr. 13 Steingard’s opinion unclear. The vocational expert was unable to answer whether “a 14 person with those limitations would be precluded from all work on a sustained basis.” 15 While counsel narrowed his hypothetical to “someone with poor persistence,” contrary to 16 Plaintiff’s portrayal, the vocational expert did not find that this limitation would preclude 17 a person from all work on a sustained basis. Rather, the vocational expert only responded 18 affirmatively that a person with such limitation would have “trouble maintaining 19 employment.” Without more, it cannot be said that Dr. Steingard’s opinion, if credited, 20 would mandate a finding of disability on remand. 21 Second, Plaintiff argues that the opinion of treating psychiatrist Amnon Kahane, 22 M.D, if credited, is a basis for remanding this case for an award of benefits. Finding the 23 record has not been fully developed, the Court does not reach whether the ALJ erred in 24 her treatment of Dr. Kahane’s opinion evidence. In offering various reasons for rejecting 25 Dr. Kahane’s check-box medical assessment form, the ALJ appears to rely on an 26 evaluation of his treatment notes. (AR 38, 419-420.) However, beyond the check-box 27 form, the record contains only a one-page “Prescriber Progress Note” completed by Dr. 28 Kahane in which he finds Plaintiff was stable and his condition was controlled by 9 1 medication. (AR 380.) Further, while the ALJ refers to treatment notes in rejecting the 2 check-box medical assessment form completed by treating physician Jeffery Edelman, 3 M.D., the record contains no treatment records from Dr. Edelman. (AR 39, 538-39.) 4 Without clarification and explanation regarding these discrepancies, the Court cannot 5 adequately evaluate the strength of the discredited evidence and determine if it is clear 6 that the ALJ would be required to find Plaintiff disabled on remand. See Garrison, 759 7 F.3d at 1021. 8 Lastly, no hypothetical was posed to the vocational expert that incorporated the 9 limitations outlined in Plaintiff’s testimony. Therefore, even if the discredited testimony 10 were credited as true, the record does not show whether the ALJ would be required to 11 find Plaintiff disabled on remand based on this evidence. 12 IV. Conclusion 13 In sum, the Court has considered the record as a whole, weighing both the 14 evidence that supports and that which detracts from the ALJ’s conclusions. The Court 15 concludes there are significant outstanding issues and will remand this case to the ALJ 16 for further proceedings and a new decision. On remand, in addition to reevaluating the 17 evidence and taking new testimony, the ALJ should accept any additional medical 18 evidence into record that exists for the period at issue. Accordingly, 19 IT IS ORDERED that the final decision of the Commissioner of Social Security 20 is VACATED and REMANDED to the Commissioner of the Social Security 21 Administration for further proceedings consistent with this order. 22 Dated this 19th day of September, 2014. 23 24 Honorable Steven P. Logan United States District Judge 25 26 27 28 10

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