Javier Meza v. Carolyn W Colvin

Filing 29

MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (See document for further details.) (iva)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 JAVIER MEZA,
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Plaintiff,
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v.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security )
Administration,
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Defendant.
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Case No. CV 15-7291-SP
MEMORANDUM OPINION AND
ORDER

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I.

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INTRODUCTION

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On September 17, 2015, plaintiff Javier Meza filed a complaint against

22 defendant, the Commissioner of the Social Security Administration
23 (“Commissioner”), seeking a review of a denial of a period of disability, disability
24 insurance benefits (“DIB”), and supplemental security income (“SSI”). The parties
25 have fully briefed the matters in dispute, and the court deems the matter suitable
26 for adjudication without oral argument.
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Plaintiff presents one disputed issue for decision: whether the

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1 Administrative Law Judge (“ALJ”) properly considered the opinion of a treating
2 physician at step two and in his residual functional capacity (“RFC”)
3 determination. Plaintiff’s Memorandum in Support of Complaint (“P. Mem.”) at
4 4-9; Defendant’s Memorandum in Support of the Answer (“D. Mem.”) at 4-6.
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Having carefully studied the parties’ memoranda on the issue in dispute, the

6 Administrative Record (“AR”), and the decision of the ALJ, the court concludes
7 that, as detailed herein, the ALJ improperly failed to consider the treating
8 physician’s opined limitations in his RFC determination. The court therefore
9 remands this matter to the Commissioner in accordance with the principles and
10 instructions enunciated in this Memorandum Opinion and Order.
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II.

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FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff was thirty-nine years old on his alleged disability onset date. AR at

14 100. Plaintiff has a sixth grade education and past relevant work as a construction
15 worker and preparation cook. Id. at 55, 80-81.
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On April 20 and 27, 2012, plaintiff filed applications for a period of

17 disability, DIB, and SSI, alleging an onset date of October 1, 2011 due to insomnia
18 and mental, head, stomach, arms, legs, and back problems. Id. at 86, 100. The
19 Commissioner denied plaintiff’s applications initially and upon reconsideration,
20 after which he filed a request for a hearing. Id. at 154-58, 162-69.
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On January 28, 2014, plaintiff appeared and testified at a hearing before the

22 ALJ. Id. at 41-85. The ALJ also heard testimony from Elizabeth Ramos Brown, a
23 vocational expert. Id. at 80-84, 205-06. On February 21, 2014, the ALJ denied
24 plaintiff’s claim for benefits. Id. at 24-34.
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Applying the well-known five-step sequential evaluation process, the ALJ

26 found, at step one, that plaintiff had not engaged in substantial gainful activity
27 since October 1, 2011, the alleged disability onset date. Id. at 26.
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At step two, the ALJ found plaintiff suffered from the following severe

2 impairments: lumbar strain and bilateral knee problems. Id.
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At step three, the ALJ found that plaintiff’s impairments, whether

4 individually or in combination, did not meet or medically equal one of the listed
5 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the
6 “Listings”). Id. at 27.
The ALJ then assessed plaintiff’s residual functional capacity,1 and

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8 determined that he had the RFC to perform light work, with the limitations that he
9 could: stand and walk for four hours total out of an eight-hour work day; sit for
10 four hours total in an eight-hour work day, with a sit/stand option alternating
11 between the two positions at a rate of about once every 20 to 30 minutes;
12 occasionally perform postural activities except never climb ladders, ropes, or
13 scaffolds; lift, carry, push and pull twenty pounds occasionally and ten pounds
14 frequently; and must use a cane for three out of the four hours while standing and
15 walking. Id.
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The ALJ found, at step four, that plaintiff was unable to perform his past

17 relevant work. Id. at 33.
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At step five, the ALJ determined that, based upon plaintiff’s age, education,

19 work experience, and RFC, plaintiff could perform other jobs that exist in
20 significant numbers in the national economy, including nut and bolt assembler,
21 bench assembler, and table worker. Id. at 33-34. Consequently, the ALJ
22 concluded that plaintiff did not suffer from a disability as defined by the Social
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Residual functional capacity is what a claimant can do despite existing
25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 115526 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation,
the ALJ must proceed to an intermediate step in which the ALJ assesses the
27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151
28 n.2 (9th Cir. 2007).
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1 Security Act (“SSA”). Id. at 34.
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Plaintiff filed a timely request for review of the ALJ’s decision, which was

3 denied by the Appeals Council. Id. at 1-3. The ALJ’s decision stands as the final
4 decision of the Commissioner.
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III.

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STANDARD OF REVIEW

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This court is empowered to review decisions by the Commissioner to deny

8 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security
9 Administration must be upheld if they are free of legal error and supported by
10 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001)
11 (as amended). But if the court determines the ALJ’s findings are based on legal
12 error or are not supported by substantial evidence in the record, the court may
13 reject the findings and set aside the decision to deny benefits. Aukland v.
14 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d
15 1144, 1147 (9th Cir. 2001).
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“Substantial evidence is more than a mere scintilla, but less than a

17 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such
18 “relevant evidence which a reasonable person might accept as adequate to support
19 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276
20 F.3d at 459. To determine whether substantial evidence supports the ALJ’s
21 finding, the reviewing court must review the administrative record as a whole,
22 “weighing both the evidence that supports and the evidence that detracts from the
23 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be
24 affirmed simply by isolating a specific quantum of supporting evidence.’”
25 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th
26 Cir. 1998)). If the evidence can reasonably support either affirming or reversing
27 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that
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1 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir.
2 1992)).
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IV.

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DISCUSSION

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Plaintiff argues the ALJ failed to properly consider the opinion of his

6 treating physician, Dr. Marc Nehorayan. P. Mem. at 4-9. Specifically, plaintiff
7 contends the ALJ failed to provide legally sufficient reasons for rejecting Dr.
8 Nehorayan’s opinion that plaintiff will have up to a fifteen percent limitation in
9 performing activities within a given schedule, maintaining regular attendance and
10 being punctual within customary tolerances, and in completing a normal workday
11 and workweek without interruptions from psychologically based symptoms. Id.
12 Plaintiff further contends that even if these limitations were not severe, the ALJ
13 was required, but failed, to consider these limitations in his RFC determination. Id.
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In determining whether a claimant has a medically determinable impairment,

15 among the evidence the ALJ considers is medical evidence. 20 C.F.R. §§
16 404.1527(b), 416.927(b). In evaluating medical opinions, the regulations
17 distinguish among three types of physicians: (1) treating physicians; (2) examining
18 physicians; and (3) non-examining physicians. 20 C.F.R.
19 §§ 404.1527(c), (e), 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
20 1996) (as amended). “Generally, a treating physician’s opinion carries more
21 weight than an examining physician’s, and an examining physician’s opinion
22 carries more weight than a reviewing physician’s.” Holohan v. Massanari, 246
23 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.027(c)(1)24 (2). The opinion of the treating physician is generally given the greatest weight
25 because the treating physician is employed to cure and has a greater opportunity to
26 understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.
27 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).
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Nevertheless, the ALJ is not bound by the opinion of the treating physician.

2 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the
3 ALJ must provide clear and convincing reasons for giving it less weight. Lester,
4 81 F.3d at 830. If the treating physician’s opinion is contradicted by other
5 opinions, the ALJ must provide specific and legitimate reasons supported by
6 substantial evidence for rejecting it. Id. Likewise, the ALJ must provide specific
7 and legitimate reasons supported by substantial evidence in rejecting the
8 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a
9 non-examining physician, standing alone, cannot constitute substantial evidence.
10 Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006); Morgan v.
11 Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d
12 813, 818 n.7 (9th Cir. 1993).
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Treating and Examining Physicians Regarding Mental Health

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Dr. Marc Nehorayan, a psychiatrist, treated plaintiff from May 31, 2012

15 through at least January 29, 2014 in connection with a worker’s compensation
16 case.2 See AR at 404-16, 818-23, 1111-36, 1172-74. At the initial evaluation, Dr.
17 Nehorayan observed plaintiff had a grimacing expression, was slightly anxious,
18 was tired, and was oriented. See id. at 409-10. Dr. Nehorayan administered
19 several psychological tests, the scores of which indicated plaintiff experienced
20 severe depression, mild anxiety, and hopelessness. Id. at 411. Based on the initial
21 evaluation, tests, history, and medical records, Dr. Nehorayan’s diagnostic
22 impression was plaintiff suffered from adjustment disorder with anxious mood,
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In September 2012, plaintiff reported to Dr. Michael S. Cohn that he was
25 seeing a psychiatrist every three weeks and a psychologist every two weeks. AR at
26 441. In contrast, in September 2013, plaintiff told Dr. Nehorayan he had never
been treated by a mental health professional. Id. at 1120. The record contains no
27 treatment notes from any mental health provider other than Dr. Nehorayan. See id.
28 at 404-16, 818-23, 1111-36, 1172-74.
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1 sleep disorder due to a general medical or orthopedic condition, orthopedic
2 injuries, occupational injury, and physical dysfunction, and he assessed a global
3 assessment of functioning (“GAF”) score of 62.3 Id. at 412. Dr. Nehorayan did
4 not believe plaintiff was actually suffering from a clinical depressive episode at
5 that time, and opined the “real issue” was the orthopedic issue and plaintiff’s
6 psychological distress would improve if the physician could alleviate plaintiff’s
7 pain. See id. at 412, 414.
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Plaintiff’s subsequent examinations yielded few and mild findings. Initially,

9 Dr. Nehorayan observed plaintiff’s emotional symptoms seemed to have worsened
10 and prescribed an anti-depressant. Id. at 818-19. But later, Dr. Nehorayan
11 observed plaintiff had a constricted affect and was less irritable. See id. 822, 1127,
12 1130, 1136, 1173.
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On September 26, 2013, Dr. Nehorayan submitted a follow-up evaluation.

14 Id. at 1111-25. In the evaluation, Dr. Nehorayan noted plaintiff was sleeping four
15 to five hours with Ambien, which helped reduce his irritability. Id. at 1113-14.
16 During the mental status examination, Dr. Nehorayan observed plaintiff was
17 slightly grimacing, had a normal affect, appeared slightly anxious, could not spell
18 “lunes” backward correctly due to his distractibility, was oriented, and had an
19 intact memory. Id. at 1115. The results from the psychological tests indicated a
20 slight amount of depression, anxiety, and hopelessness. Id. at 1116. Dr.
21 Nehorayan’s diagnostic impression was the same as during the initial evaluation,
22 except for a slightly higher GAF score of 64. Id. at 1117. Dr. Nehorayan opined
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A GAF score of 61-70 indicates “[s]ome mild symptoms (e.g., depressed
25 mood and mild insomnia) or some difficulty in social, occupational, or school
26 functioning (e.g., occasional truancy, or theft within the household), but generally
functioning pretty well, has some meaningful interpersonal relationships.” Am.
27 Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th
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1 that plaintiff’s cognitive difficulties had nothing to do with his emotional state, but
2 rather his difficulties with focusing and concentrating resulted from his pain. Id. at
3 1114. Relying on the levels of mental impairment identified by the AMA Guides
4 to the Evaluation of Permanent Impairment (“AMA Guides”), Dr. Nehorayan
5 opined plaintiff had mild limitations with regard to: most areas of social
6 functioning; memory, concentration, persistence, and pace; and deterioration or
7 decompensation in worklife settings. Id. at 1119-20. Dr. Nehorayan also found
8 plaintiff’s GAF score of 64 translated to a nine percent whole person impairment
9 and plaintiff should have an additional three percent impairment associated with
10 pain. Id. at 1122-23.
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Dr. Michael S. Cohn, a consultative psychologist, examined plaintiff on

12 September 7, 2012. Id. at 440-48. Dr. Cohn observed plaintiff, among other
13 things, was focused during the examination, had no difficulty making decisions,
14 was coherent, and had a normal affect. Id. at 442-43. Dr. Cohn opined plaintiff
15 had no mental limitations and assessed a GAF score of 75.4 Id. at 447-48.
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The ALJ’s Findings at Step Two

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At step two, the Commissioner considers the severity of the claimant’s

18 impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). “[T]he step-two
19 inquiry is a de minimis screening device to dispose of groundless claims.” Smolen,
20 80 F.3d at 1290.
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Here, the ALJ concluded plaintiff did not suffer from a severe mental

22 impairment. AR at 26. In reaching that decision, the ALJ relied on the opinions of
23 Dr. Nehorayan and Dr. Cohn. The ALJ noted Dr. Nehorayan assessed plaintiff
24 with a GAF score of 62, which only indicated mild limitations, and Dr. Cohn
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A GAF score of 71-80 means “[i]f symptoms are present, they are transient
and expectable reactions to psychosocial stressors (e.g., difficulty concentrating
27 after family argument); no more than slight impairment in social, occupational, or
28 school functioning (e.g., temporarily falling behind in schoolwork).” DSM.
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1 assessed plaintiff with a GAF score of 75. Id. The ALJ also noted Dr. Cohn did
2 not diagnose plaintiff with any mental disorder and the records contained no
3 evidence of continuous mental health treatment, psychiatric hospitalization, or
4 inpatient mental treatment. Id.
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Contrary to plaintiff’s contention (see P. Mem. at 6), the ALJ did not reject

6 Dr. Nehorayan’s opinion at step two. Mental impairments are generally considered
7 non-severe if the degree of limitation in three of the four functional areas are rated
8 as “none” or “mild.” 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1). Dr.
9 Nehorayan opined plaintiff would only have mild mental limitations.
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Plaintiff intimates Dr. Nehorayan actually opined greater than mild

11 limitations, arguing Dr. Nehorayan opined plaintiff “will have up to a fifteen
12 percent limitation” in performing within a schedule, attending work regularly,
13 being punctual, and working without interruptions. P. Mem. at 5-6. But plaintiff’s
14 argument is misleading. Dr. Nehorayan never stated that plaintiff would have up
15 to a fifteen percent impairment. Rather, Dr. Nehorayan simply opined plaintiff had
16 an overall mild impairment. AR at 1119-20. Pursuant to the AMA Guides, a mild
17 impairment can range from a one percent to fifteen percent impairment. Id. at
18 1119. Thus, Dr. Nehorayan’s opinion may be interpreted as falling anywhere in
19 that range, including a one percent impairment. Further, Dr. Nehorayan’s opinion
20 uses worker’s compensation terminology and guidelines, which do not necessarily
21 apply in the social security context.5 See Booth v. Barnhart, 181 F. Supp. 2d
22 1099, 1104 (C.D. Cal. 2002).
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As such, the ALJ’s step two determination that plaintiff did not suffer a

24 severe mental impairment was not a rejection of Dr. Nehorayan’s opinion.
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Similarly, Dr. Nehorayan’s conclusion that plaintiff’s GAF score of 64
translated to a nine percent whole person impairment uses worker’s compensation
27 terminology, which does not apply in the social security context. See AR at 112128 22.
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The ALJ’s RFC Determination

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RFC is what one can “still do despite [his or her] limitations.” 20 C.F.R.

3 §§ 404.1545(a)(1)-(2), 416.945(a)(1)-(2). The ALJ reaches an RFC determination
4 by reviewing and considering all of the relevant evidence, including non-severe
5 impairments. Id.; see Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (the
6 failure to address an impairment at step two is harmless if the RFC discussed it in
7 step four). Thus, the ALJ was obligated to consider plaintiff’s mental limitations,
8 notwithstanding the ALJ’s finding that they were non-severe impairments. See
9 Social Security Ruling 96-8p (“In assessing RFC, the adjudicator must consider
10 limitations and restrictions imposed by all of an individual’s impairments, even
11 those that are not ‘severe.’”).
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The ALJ’s RFC determination includes only physical limitations. AR at 27.

13 And in discussing his RFC determination, the ALJ mentions only plaintiff’s
14 physical limitations, and offers no consideration of any mental limitations. See id.
15 at 27-33. If the ALJ rejected Dr. Nehorayan’s findings of mild mental limitations,
16 he was required to say so and provide specific and legitimate reasons supported by
17 substantial evidence for the rejection. See Lester, 81 F.3d at 830. The ALJ gave
18 no such reasons here. On the contrary, in his step two analysis the ALJ indicated
19 he accepted Dr. Nehorayan’s opinion. See AR at 26.
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Consequently, although the ALJ properly found plaintiff did not have a

21 severe mental impairment at step two, he erred in his RFC determination because
22 he was still required to consider the mental limitations opined by Dr. Nehorayan,
23 which in this case included mild limitations with regard to memory, concentration,
24 persistence, and pace. See id. at 1119-20. Arguably, in reaching his RFC
25 determination, the ALJ could have relied on Dr. Nehorayan’s opinion that
26 plaintiff’s real issue was orthopedic and, once that was resolved, plaintiff would
27 not suffer from cognitive limitations. See id. at 412, 414, 1114. But if that was the
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1 ALJ’s reasoning, he was required to articulate it. The ALJ’s failure to even
2 acknowledge the opined limitations anywhere in his RFC discussion suggests he
3 simply ignored Dr. Nehorayan’s opinion without reason.
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The ALJ may ultimately conclude that the opined mental limitations do not

5 need to be included in plaintiff’s RFC, but his failure to even consider the mental
6 limitations in his RFC determination was error. Nor was it plainly a harmless
7 error, given the absence of clear testimony from the vocational expert as to the
8 effect such mild mental limitations would have on plaintiff’s ability to work. See
9 id. at 82-84. As such, the ALJ erred in his RFC determination.
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V.

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REMAND IS APPROPRIATE

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The decision whether to remand for further proceedings or reverse and

13 award benefits is within the discretion of the district court. McAllister v. Sullivan,
14 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this
15 discretion to direct an immediate award of benefits where: “(1) the record has been
16 fully developed and further administrative proceedings would serve no useful
17 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting
18 evidence, whether claimant testimony or medical opinions; and (3) if the
19 improperly discredited evidence were credited as true, the ALJ would be required
20 to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020
21 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with
22 instructions to calculate and award benefits). But where there are outstanding
23 issues that must be resolved before a determination can be made, or it is not clear
24 from the record that the ALJ would be required to find a plaintiff disabled if all the
25 evidence were properly evaluated, remand for further proceedings is appropriate.
26 See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel,
27 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for
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1 further proceedings when, even though all conditions of the credit-as-true rule are
2 satisfied, an evaluation of the record as a whole creates serious doubt that a
3 claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021.
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Here, remand is required because the ALJ erred in his RFC determination,

5 and it is unclear what plaintiff’s RFC would be if the ALJ properly considered Dr.
6 Nehorayan’s opinion, or what effect a change in RFC would have on the disability
7 determination. On remand, the ALJ shall consider the mental limitations opined by
8 Dr. Nehorayan and reassess plaintiff’s RFC. The ALJ shall then proceed through
9 steps four and five to determine what work, if any, plaintiff is capable of
10 performing.
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VI.

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RECOMMENDATION

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IT IS THEREFORE ORDERED that Judgment shall be entered

14 REVERSING the decision of the Commissioner denying benefits, and
15 REMANDING the matter to the Commissioner for further administrative action
16 consistent with this decision.
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18 DATED: December 29, 2016
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SHERI PYM
United States Magistrate Judge

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