Mickella Martin v. Carolyn W. Colvin

Filing 20

MEMORANDUM AND ORDER by Magistrate Judge Kenly Kiya Kato: (see document image for further details). For the foregoing reasons, IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this action for further proceedings consistent with this Order. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (ad)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 Plaintiff, 11 12 13 14 15 Case No. CV 16-1368-KK MICKELLA MARTIN, v. MEMORANDUM AND ORDER CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 16 17 Plaintiff Mickella Martin (“Plaintiff”) seeks review of the final decision of 18 the Commissioner of the Social Security Administration (“Commissioner” or 19 “Agency”) denying her application for Title XVI Supplemental Security Income 20 (“SSI”). The parties have consented to the jurisdiction of the undersigned United 21 States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated 22 below, the Commissioner’s decision is REVERSED and this action is 23 REMANDED for further proceedings consistent with this Order. 24 I. 25 PROCEDURAL HISTORY 26 On August 4, 2011, Plaintiff filed an application for SSI, alleging a disability 27 onset date of June 18, 2011. Administrative Record (“AR”) at 137-43. Plaintiff’s 28 application was denied initially on November 16, 2011, and upon reconsideration 1 on March 14, 2013. Id. at 66-79, 80-96, 97-100, 103-07. On April 5, 2013, Plaintiff 2 requested a hearing before an Administrative Law Judge (“ALJ”). Id. at 110. On 3 April 22, 2014, Plaintiff appeared with counsel and testified at a hearing before the 4 assigned ALJ. Id. at 29-50. A vocational expert (“VE”) also testified at the 5 hearing. Id. at 47-49. On June 16, 2014, the ALJ issued a decision denying 6 Plaintiff’s application for SSI. Id. at 15-28. 7 On August 7, 2014, Plaintiff filed a request to the Agency’s Appeals Council 8 to review the ALJ’s decision. Id. at 10-12. On January 12, 2016, the Appeals 9 Council denied Plaintiff’s request for review. Id. at 1-6. 10 On February 26, 2016, Plaintiff filed the instant action. ECF Docket No. 11 (“Dkt.”) 1, Compl. This matter is before the Court on the Parties’ Joint 12 Stipulation (“JS”), filed January 9, 2017. Dkt. 19, JS. 13 II. 14 PLAINTIFF’S BACKGROUND 15 Plaintiff was born on May 27, 1975, and her alleged disability onset date is 16 June 18, 2011. AR at 137. She was thirty-six years old on the alleged disability 17 onset date and thirty-eight years old at the time of the hearing before the ALJ. Id. 18 at 85, 204. Plaintiff has a high school education and no documented work 19 experience. Id. at 226. Plaintiff alleges disability based on mental illness, morbid 20 obesity, depression, lower back pain, knee pain, ankle pain, and arthritis in hands 21 and knees. Id. at 66, 80. 22 III. 23 STANDARD FOR EVALUATING DISABILITY 24 To qualify for SSI, a claimant must demonstrate a medically determinable 25 physical or mental impairment that prevents her from engaging in substantial 26 gainful activity, and that is expected to result in death or to last for a continuous 27 period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 28 1998). The impairment must render the claimant incapable of performing the work 2 1 she previously performed and incapable of performing any other substantial gainful 2 employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 3 1098 (9th Cir. 1999). To decide if a claimant is disabled, and therefore entitled to benefits, an ALJ 4 5 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 1. Is the claimant presently engaged in substantial gainful activity? If so, the 6 claimant is found not disabled. If not, proceed to step two. 7 2. Is the claimant’s impairment severe? If not, the claimant is found not 8 disabled. If so, proceed to step three. 9 3. Does the claimant’s impairment meet or equal one of the specific 10 11 impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 12 the claimant is found disabled. If not, proceed to step four.1 4. Is the claimant capable of performing work she has done in the past? If so, 13 the claimant is found not disabled. If not, proceed to step five. 14 5. Is the claimant able to do any other work? If not, the claimant is found 15 disabled. If so, the claimant is found not disabled. 16 17 See Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 18 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1). The claimant has the burden of proof at steps one through four, and the 19 20 Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953- 21 54. Additionally, the ALJ has an affirmative duty to assist the claimant in 22 developing the record at every step of the inquiry. Id. at 954. If, at step four, the 23 claimant meets her burden of establishing an inability to perform past work, the 24 Commissioner must show that the claimant can perform some other work that 25 26 27 28 “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant’s [residual functional capacity],” or ability to work after accounting for her verifiable impairments. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009) (citing 20 C.F.R. § 416.920(e)). In determining a claimant’s residual functional capacity, an ALJ must consider all relevant evidence in the record. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 3 1 1 exists in “significant numbers” in the national economy, taking into account the 2 claimant’s residual functional capacity (“RFC”), age, education, and work 3 experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. 4 §§ 404.1520(g)(1), 416.920(g)(1). 5 IV. 6 THE ALJ’S DECISION 7 A. At step one, the ALJ found Plaintiff has not engaged “in substantial gainful 8 9 10 STEP ONE activity since July 29, 2011, the application date.” AR at 20. B. STEP TWO At step two, the ALJ found Plaintiff “ha[d] the following severe 11 12 impairments: obesity; and depression and learning disorder, not otherwise 13 specified.” Id. 14 C. STEP THREE At step three, the ALJ found Plaintiff does “not have an impairment or 15 16 combination of impairments that meets or medically equals the severity of one of 17 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Id. 18 D. RFC DETERMINATION 19 The ALJ found Plaintiff had the following RFC: 20 “to perform sedentary work as defined in 20 CFR 416.967(a) except: 21 stand 2 hours of an 8 hour day; sit 6 hours of an 8 hour day; 22 occasionally bend/stoop; lift 5 pounds frequently; 10 pounds 23 occasionally; simple, routine, tasks.” 24 Id. at 21. 25 E. STEP FOUR At step four, the ALJ found Plaintiff “has no past relevant work.” Id. at 23. 26 27 /// 28 /// 4 1 2 F. STEP FIVE At step five, the ALJ found “[c]onsidering the claimant’s age, education, 3 work experience, and residual functional capacity, there are jobs that exist in 4 significant numbers in the national economy that [Plaintiff] can perform.” Id. The 5 ALJ therefore concluded Plaintiff was not disabled. Id. at 23-24. 6 V. 7 PLAINTIFF’S CLAIMS 8 Plaintiff presents four disputed issues: (1) whether the ALJ erred when he 9 failed to consider application of Listing 12.05C based on Plaintiff’s poor memory 10 IQ score; (2) whether the ALJ erred when he failed to resolve conflicts between the 11 DOT and the VE’s identified jobs for Plaintiff; (3) whether the ALJ’s credibility 12 assessment is supported by substantial evidence; and (4) whether the ALJ 13 committed reversible error in his assessment of Dr. Kubo’s medical opinions. 14 The Court finds the fourth issue dispositive of this matter and thus declines 15 to address the remaining issues. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 16 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline 17 to reach [Plaintiff’s] alternative ground for remand.”). 18 VI. 19 STANDARD OF REVIEW 20 Pursuant to 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. The ALJ’s findings and decision should 22 be upheld if they are free of legal error and supported by substantial evidence based 23 on the record as a whole. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 24 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 25 “Substantial evidence” is evidence that a reasonable person might accept as 26 adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 27 Cir. 2007). It is more than a scintilla but less than a preponderance. Id. To 28 determine whether substantial evidence supports a finding, the reviewing court 5 1 “must review the administrative record as a whole, weighing both the evidence that 2 supports and the evidence that detracts from the Commissioner’s conclusion.” 3 Reddick, 157 F.3d at 720 (citation omitted); see also Hill v. Astrue, 698 F.3d 1153, 4 1159 (9th Cir. 2012) (stating that a reviewing court “may not affirm simply by 5 isolating a ‘specific quantum of supporting evidence’”) (citation omitted). “If the 6 evidence can reasonably support either affirming or reversing,” the reviewing court 7 “may not substitute its judgment” for that of the Commissioner. Reddick, 157 8 F.3d at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) 9 (“Even when the evidence is susceptible to more than one rational interpretation, 10 we must uphold the ALJ’s findings if they are supported by inferences reasonably 11 drawn from the record.”). 12 The Court may review only the reasons stated by the ALJ in his decision 13 “and may not affirm the ALJ on a ground upon which he did not rely.” Orn v. 14 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). If the ALJ erred, the error may only be 15 considered harmless if it is “clear from the record” that the error was 16 “inconsequential to the ultimate nondisability determination.” Robbins, 466 F.3d 17 at 885 (citation omitted). 18 VII. 19 DISCUSSION 20 THE ALJ ERRED WHEN HE FAILED TO PROPERLY CONSIDER 21 MEDICAL EVIDENCE BY PLAINTIFF’S TREATING PHYSICIAN 22 REGARDING UPPER EXTREMITIES LIMITATIONS 23 A. RELEVANT FACTS 24 Dr. Koji Kubo, a family practitioner, is one of Plaintiff’s treating physicians. 25 AR at 423-50. In 2014, Dr. Kubo filled out a medical questionnaire where he noted 26 Plaintiff suffers from moderate limitations in both of her upper extremities due to 27 bilateral carpal tunnel syndrome. Id. at 423. Specifically, Dr. Kubo noted Plaintiff 28 suffers from “numbness in hands,” which prevents her from being able “to 6 1 perform duties that require manipulation with hands.” Id. Dr. Kubo further noted 2 that Plaintiff has been experiencing these symptoms for the last three years. Id. at 3 425. He opined that these limitations would “disrupt a regular job schedule with 4 low physical demands” “continuously [and] every day.” Id. 5 B. 6 APPLICABLE LAW “There are three types of medical opinions in social security cases: those 7 from treating physicians, examining physicians, and non-examining physicians.” 8 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009); see also 9 20 C.F.R. §§ 404.1502, 404.1527. “As a general rule, more weight should be given 10 to the opinion of a treating source than to the opinion of doctors who do not treat 11 the claimant.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Garrison v. 12 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing Ryan v. Comm’r of Soc. Sec., 528 13 F.3d 1194, 1198 (9th Cir. 2008)); Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 14 1222 (9th Cir. 2010). 15 “[T]he ALJ may only reject a treating or examining physician’s 16 uncontradicted medical opinion based on clear and convincing reasons.” 17 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 18 (citation and internal quotation marks omitted); Widmark v. Barnhart, 454 F.3d 19 1063, 1066 (9th Cir. 2006). “Where such an opinion is contradicted, however, it 20 may be rejected for specific and legitimate reasons that are supported by substantial 21 evidence in the record.” Carmickle, 533 F.3d at 1164 (citation and internal 22 quotation marks omitted); Ryan, 528 F.3d at 1198; Ghanim v. Colvin, 763 F.3d 23 1154, 1160-61 (9th Cir. 2014); Garrison, 759 F.3d at 1012. The ALJ can meet the 24 requisite specific and legitimate standard “by setting out a detailed and thorough 25 summary of the facts and conflicting clinical evidence, stating [her or] his 26 interpretation thereof, and making findings.” Reddick, 157 F.3d at 725. The ALJ 27 “must set forth his own interpretations and explain why they, rather than the 28 [treating or examining] doctors’, are correct.” Id. 7 While an ALJ is not required to discuss all the evidence presented, he must 1 2 explain the rejection of uncontroverted medical evidence, as well as significant 3 probative evidence. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) 4 (citation omitted). Moreover, an ALJ must consider all of the relevant evidence in 5 the record and may not point to only those portions of the records that bolster his 6 findings. See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) 7 (holding an ALJ cannot selectively rely on some entries in plaintiff’s records while 8 ignoring others). Lastly, while an ALJ is “not bound by an expert medical opinion 9 on the ultimate question of disability,” if the ALJ rejects an expert medical 10 opinion’s ultimate finding on disability, he “must provide ‘specific and legitimate’ 11 reasons for rejecting the opinion.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th 12 Cir. 2008) (quoting Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995), as 13 amended (Apr. 9, 1996)). An ALJ is not precluded from relying upon a physician’s 14 medical findings, even if he refuses to accept the physician’s ultimate finding on 15 disability. See, e.g., Magallanes v. Bowen, 881 F.2d 747, 754 (9th Cir. 1989). 16 C. ANALYSIS Here, the ALJ erred when he failed to properly consider Dr. Kubo’s medical 17 18 conclusion that Plaintiff was limited in the use of her upper extremities because of 19 numbness and pain in her hands. The ALJ reasoned Dr. Kubo’s opinion deserved 20 little weight because “the restrictions in [Dr. Kubo’s opinion] are largely 21 unsupported by objective findings in medical records.” AR at 22. Furthermore, 22 the ALJ noted “Dr. Kubo himself notes that the restrictions provided were based 23 mostly on [Plaintiff’s] subjective reports,” but “the objective evidence provides 24 good reasons for questioning the reliability of [Plaintiff’s] subjective complaints.” 25 Id. 26 Despite the ALJ’s conclusion, there is evidence throughout the record that 27 indicates Plaintiff has a history of pain and numbness in her hands for which she 28 has been frequently treated over the past few years. Medical records further 8 1 document Plaintiff’s diagnoses of both arthritis in the hands and carpal tunnel 2 syndrome. For example, in June 2010, Dr. Tammy P. Cheng noted Plaintiff has 3 been suffering from “bilateral hand tingling.” AR at 330. She additionally noted 4 Plaintiff’s bilateral hand x-rays present indications of “a possible erosion,” and that 5 she would consider starting Plaintiff on a “disease-modifying agent for rheumatoid 6 arthritis.” Id. Additionally, in September 2011, Dr. Sonia G. Martin completed a 7 Disability Determination Report in which she reported Plaintiff having “arthritis in 8 her hands.” Id. at 258. Furthermore, in October 2011, Dr. Shahrzad Sodagar- 9 Marvasti noted Plaintiff suffers from pain and arthritis in her hands. Id. at 266. 10 Lastly, in February 2013, Dr. Sohail K. Arfa noted Plaintiff complained of 11 “occasional to frequent numbness on both hands,” which “[a]t times . . . makes it 12 difficult for [Plaintiff] to sleep at night.” Id. at 281. Dr. Arfa also noted Plaintiff’s 13 “[h]andgrip strength was decreased bilaterally” and that she “may have early 14 element of carpal tunnel syndrome.” Id. at 284. Dr. Arfa ultimately concluded 15 Plaintiff was “[l]imited to frequently for gross movements” of the hands. Id. at 16 285. 17 In light of Plaintiff’s consistent complaints of pain in her hands and the 18 objective medical evidence supporting an arthritis of the hands and carpal tunnel 19 diagnosis, the ALJ erred when he chose to give Dr. Kubo’s medical opinion 20 regarding upper extremities limitations little weight. See Orn v. Astrue, 495 F.3d 21 625, 631 (9th Cir. 2007) (noting factors relevant to evaluating any medical opinion 22 can include “the amount of relevant evidence that supports the opinion” and “the 23 consistency of the medical opinion with the record as a whole”). While the ALJ 24 may properly disregard a treating physician’s opinion, he may only do so by 25 “setting forth ‘specific, legitimate reasons . . . based on substantial evidence’ . . . 26 supported by a detailed summary of the facts and conflicting clinical evidence, 27 along with a reasoned interpretation thereof.” Rodriguez v. Bowen, 876 F.2d 759, 28 762 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 9 1 1986)). In this case, the ALJ erred when he failed to consider the medical evidence 2 documenting Plaintiff’s upper extremity pain, diagnoses, and resulting limitations 3 before rejecting Dr. Kubo’s medical opinion. Moreover, while Dr. Kubo may not 4 have conducted his own objective tests before coming to his conclusion, the record 5 as a whole provides evidence that supports his findings. See AR at 258, 266, 281, 6 284, 330. Significantly, the ALJ failed to include any limitation regarding Plaintiff’s 7 8 upper extremities in the RFC determination or in the hypothetical he posed to the 9 VE. See AR at 21, 47-48. By omitting any consideration of Plaintiff’s arthritis of 10 the hands and carpal tunnel syndrome, the ALJ did not account for the handling 11 limitations recognized by Dr. Kubo and Plaintiff’s other treating and examining 12 physicians. This is particularly concerning in light of the fact that the jobs the VE 13 considered for Plaintiff – Final Assembler, DOT 713.687-018, and Order Clerk, 14 DOT 209.567-014 – are sedentary positions that may require abilities like “manual 15 dexterity,” “control precision,” “finger dexterity,” and “wrist-finger speed.” 16 See Dictionary of Occupational Titles, Assemblers and Fabricators; Order Clerks. 17 While the Court does not express any opinion as to whether Plaintiff is in fact 18 disabled2, the ALJ could not properly come to his conclusion without first 19 considering any possible upper extremities limitations, which appear to have 20 factual support throughout the record. 21 /// 22 /// 23 /// 24 /// 25 26 27 28 The Court notes, for example, Dr. John Carroll’s opinion that “Plaintiff would be able to do a job full time with low physical demands” and that “if [Plaintiff] were to receive social security disability, this would actually further worsen her health both mentally and physically, and could be one of the worst things possible for her.” AR at 421. 10 2 1 VIII. 2 RELIEF 3 A. APPLICABLE LAW “When an ALJ’s denial of benefits is not supported by the record, the 4 5 proper course, except in rare circumstances, is to remand to the agency for 6 additional investigation or explanation.” Hill, 698 F.3d at 1162 (citation omitted). 7 “We may exercise our discretion and direct an award of benefits where no useful 8 purpose would be served by further administrative proceedings and the record has 9 been thoroughly developed.” Id. (citation omitted). “Remand for further 10 proceedings is appropriate where there are outstanding issues that must be resolved 11 before a determination can be made, and it is not clear from the record that the ALJ 12 would be required to find the claimant disabled if all the evidence were properly 13 evaluated.” Id. (citations omitted); see also Reddick, 157 F.3d at 729 (“We do not 14 remand this case for further proceedings because it is clear from the administrative 15 record that Claimant is entitled to benefits.”). 16 B. ANALYSIS 17 In this case, the record has not been fully developed. The ALJ must consider 18 Dr. Kubo’s medical opinions in light of the additional medical evidence throughout 19 the record, which indicates Plaintiff suffers from pain and numbness in her hands 20 and has been diagnosed with arthritis of the hands and carpal tunnel syndrome. 21 See AR at 258, 266, 281, 284, 330. Accordingly, remand for further proceedings is 22 appropriate. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 11 1 IX. 2 CONCLUSION 3 For the foregoing reasons, IT IS ORDERED that judgment be entered 4 REVERSING the decision of the Commissioner and REMANDING this action for 5 further proceedings consistent with this Order. IT IS FURTHER ORDERED that 6 the Clerk of the Court serve copies of this Order and the Judgment on counsel for 7 both parties. 8 9 10 11 Dated: February 15, 2017 HONORABLE KENLY KIYA KATO United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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