Daniel Edward Beeman v. Carolyn W. Colvin

Filing 23

DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for details.) IT IS THEREFORE ORDERED that: Judgment be entered REVERSING the Commissioner's decision and REMANDING this case for further proceedings as outlined above, incl uding assignment to a different ALJ and compliance with the deadline established herein; and The Clerk of the Court shall file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case without prejudice to a timely application for attorneys' fees. (wr)

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1 O 2 3 4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6 Case No. 2:16-CV-01811 (VEB) 7 8 DANIEL EDWARD BEEMAN, 10 11 DECISION AND ORDER Plaintiff, 9 vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 12 Defendant. 13 I. INTRODUCTION 14 In February of 2014, Plaintiff Daniel Edward Beeman applied for Disability 15 16 17 18 Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the application.1 1 Plaintiff, represented by the Law Offices of  On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The 19 Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.  20 1 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 Lawrence D. Rohlfing, Cyrus Safa, Esq., of counsel, commenced this action seeking 2 judicial review of the Commissioner’s denial of benefits pursuant to 42 U.S.C. §§ 3 405 (g) and 1383 (c)(3). 4 The parties consented to the jurisdiction of a United States Magistrate Judge. 5 (Docket No. 9, 10). On February 9, 2017, this case was referred to the undersigned 6 pursuant to General Order 05-07. (Docket No. 20). 7 8 II. BACKGROUND 9 Plaintiff applied for benefits on February 20, 2014, alleging disability 10 beginning July 1, 2012. (T at 159-62).2 The application was denied initially and on 11 reconsideration. Plaintiff requested a hearing before an Administrative Law Judge 12 (“ALJ”). On July 24, 2015, a hearing was held before ALJ James Delphey. (T at 13 38). Plaintiff appeared with his attorney and testified. (T at 43-79). The ALJ also 14 received testimony from Gail Maron, a vocational expert (T at 80-92). 15 On October 5, 2015, the ALJ issued a written decision denying the application 16 for benefits. (T at 19-37). The ALJ’s decision became the Commissioner’s final 17 decision on January 21, 2016, when the Appeals Council denied Plaintiff’s request 18 for review. (T at 1-7). 19 2 20  Citations to (“T”) refer to the administrative record at Docket No. 14. 2 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 On March 16, 2016, Plaintiff, acting by and through his counsel, filed this 2 action seeking judicial review of the Commissioner’s decision. (Docket No. 1). The 3 Commissioner interposed an Answer on August 10, 2016. (Docket No. 13). The 4 parties filed a Joint Stipulation on January 13, 2017. (Docket No. 19). 5 After reviewing the pleadings, Joint Stipulation, and administrative record, 6 this Court finds that the Commissioner’s decision must be reversed and this case 7 remanded for further proceedings. 8 9 10 III. DISCUSSION A. Sequential Evaluation Process 11 The Social Security Act (“the Act”) defines disability as the “inability to 12 engage in any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which has 14 lasted or can be expected to last for a continuous period of not less than twelve 15 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 16 claimant shall be determined to be under a disability only if any impairments are of 17 such severity that he or she is not only unable to do previous work but cannot, 18 considering his or her age, education and work experiences, engage in any other 19 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 20 3 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 2 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 3 The Commissioner has established a five-step sequential evaluation process 4 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 5 one determines if the person is engaged in substantial gainful activities. If so, 6 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 7 decision maker proceeds to step two, which determines whether the claimant has a 8 medically severe impairment or combination of impairments. 20 C.F.R. §§ 9 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 10 If the claimant does not have a severe impairment or combination of 11 impairments, the disability claim is denied. If the impairment is severe, the 12 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 13 with a number of listed impairments acknowledged by the Commissioner to be so 14 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 15 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 16 equals one of the listed impairments, the claimant is conclusively presumed to be 17 disabled. If the impairment is not one conclusively presumed to be disabling, the 18 evaluation proceeds to the fourth step, which determines whether the impairment 19 prevents the claimant from performing work which was performed in the past. If the 20 4 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 claimant is able to perform previous work, he or she is deemed not disabled. 20 2 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 3 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 4 work, the fifth and final step in the process determines whether he or she is able to 5 perform other work in the national economy in view of his or her residual functional 6 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 7 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 8 The initial burden of proof rests upon the claimant to establish a prima facie 9 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 10 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 11 is met once the claimant establishes that a mental or physical impairment prevents 12 the performance of previous work. The burden then shifts, at step five, to the 13 Commissioner to show that (1) plaintiff can perform other substantial gainful 14 activity and (2) a “significant number of jobs exist in the national economy” that the 15 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 16 B. Standard of Review 17 Congress has provided a limited scope of judicial review of a Commissioner’s 18 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 19 made through an ALJ, when the determination is not based on legal error and is 20 5 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 2 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 3 “The [Commissioner’s] determination that a plaintiff is not disabled will be 4 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 5 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 6 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 7 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 8 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 9 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 10 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 11 conclusions as the [Commissioner] may reasonably draw from the evidence” will 12 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 13 the Court considers the record as a whole, not just the evidence supporting the 14 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 15 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 16 It is the role of the Commissioner, not this Court, to resolve conflicts in 17 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 18 interpretation, the Court may not substitute its judgment for that of the 19 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 20 6 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 2 set aside if the proper legal standards were not applied in weighing the evidence and 3 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 4 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 5 administrative findings, or if there is conflicting evidence that will support a finding 6 of either disability or non-disability, the finding of the Commissioner is conclusive. 7 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 8 C. Commissioner’s Decision 9 The ALJ determined that Plaintiff met the insured status requirements of the 10 Social Security Act through December 31, 2017. (T at 24). The ALJ concluded that 11 Plaintiff did engage in substantial gainful activity after December 13, 2013 (the 12 application date). (T at 24). However, the ALJ decided not to deny the claim for 13 benefits on that basis as Plaintiff’s substantial gainful activity was inconsistent. As 14 such, the ALJ continued the sequential evaluation process. (T at 24). 15 The ALJ found that Plaintiff’s post-concussion syndrome, herniated disc in 16 the neck, anxiety/depression, vitiligo, migraines, and lumbar degenerative disc 17 disease with low back pain were medically determinable impairments. (Tr. 24). 18 19 20 However, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that were “severe” as defined under the Act. (T at 25). 7 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 As such, the ALJ found that Plaintiff was not entitled to benefits under the 2 Social Security Act from July 1, 2012 (the alleged onset date) through October 8, 3 2015 (the date of the ALJ’s decision). (T at 31-32). As noted above, the ALJ’s 4 decision became the Commissioner’s final decision when the Appeals Council 5 denied Plaintiff’s request for review. (T at 1-7). 6 D. Disputed Issues 7 As set forth in the parties’ Joint Stipulation (Docket No. 19), Plaintiff offers a 8 single argument in support of his claim that the Commissioner’s decision should be 9 reversed. He contends that the ALJ did not adequately evaluate the severity of his 10 11 mental impairments. IV. ANALYSIS 12 At step two of the sequential evaluation process, the ALJ must determine 13 whether the claimant has a “severe” impairment. See 20 C.F.R. §§ 404.1520(c), 14 416.920(c). The fact that a claimant has been diagnosed with and treated for a 15 medically determinable impairment does not necessarily mean the impairment is 16 “severe,” as defined by the Social Security Regulations. See, e.g., Fair v. Bowen, 17 885 F.2d 597, 603 (9th Cir. 1989); Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 18 1985). To establish severity, the evidence must show the diagnosed impairment 19 20 8 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 significantly limits a claimant's physical or mental ability to do basic work activities 2 for at least 12 consecutive months. 20 C.F.R. § 416.920(c). 3 The step two analysis is a screening device designed to dispose of de minimis 4 complaints. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “[A]n impairment 5 is found not severe . . . when medical evidence establishes only a slight abnormality 6 or a combination of slight abnormalities which would have no more than a minimal 7 effect on an individual’s ability to work.” Yuckert v. Bowen, 841 F.2d 303 (9th Cir. 8 1988) (quoting SSR 85-28). The claimant bears the burden of proof at this stage and 9 the “severity requirement cannot be satisfied when medical evidence shows that the 10 person has the ability to perform basic work activities, as required in most jobs.” 11 SSR 85-28. Basic work activities include: “walking, standing, sitting, lifting, 12 pushing, pulling, reaching, carrying, or handling; seeing, hearing, speaking; 13 understanding, carrying out and remembering simple instructions; responding 14 appropriately to supervision, coworkers, and usual work situations.” Id. 15 In the present case, the ALJ concluded that Plaintiff suffered from several 16 medically determinable impairments: post-concussion syndrome, herniated disc in 17 the neck, anxiety/depression, vitiligo, migraines, and lumbar degenerative disc 18 disease with low back pain. (T at 24). 19 impairments, either singly or in combination, did not significantly limit Plaintiff’s 20 9 However, the ALJ found that these DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 ability to perform basic work-related activities and, as such, were not “severe” under 2 the Social Security Act. (T at 25). 3 consideration of the medical opinion evidence available in this case. Thus, this 4 Court’s review of that decision necessarily turns on whether the ALJ properly 5 evaluated the available medical opinion evidence. The ALJ’s decision was based on his 6 In disability proceedings, a treating physician’s opinion carries more weight 7 than an examining physician’s opinion, and an examining physician’s opinion is 8 given more weight than that of a non-examining physician. Benecke v. Barnhart, 9 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 10 1995). If the treating or examining physician’s opinions are not contradicted, they 11 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 12 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 13 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 14 1035, 1043 (9th Cir. 1995). 15 An ALJ satisfies the “substantial evidence” requirement by “setting out a 16 detailed and thorough summary of the facts and conflicting clinical evidence, stating 17 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 18 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 19 20 10 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 “The ALJ must do more than state conclusions. He must set forth his own 2 interpretations and explain why they, rather than the doctors,’ are correct.” Id. 3 4 This Court will summarize the medical opinion evidence and then analyze the ALJ’s consideration of that evidence. 5 A. 6 Dr. Shakira M. Simmons, a treating psychologist, examined Plaintiff on a 7 single occasion in June of 2015 and completed a mental impairment questionnaire. 8 Dr. Simmons reviewed Plaintiff’s chart and noted diagnoses of PTSD, major 9 depressive disorder, and alcohol dependence. (T at 371). She described Plaintiff’s 10 presentation as depressed, fatigued, withdrawn, irritable, and prone to angry 11 outbursts. (T at 371). Based on his treatment history, Dr. Simmons characterized 12 Plaintiff’s prognosis as poor. (T at 371). Dr. Simmons 13 Dr. Simmons opined that Plaintiff had no useful ability to function in the 14 following areas: working in coordination with or proximity to others without being 15 unduly distracted, completing a normal workday and workweek without 16 interruptions from psychologically based symptoms, getting along with co-workers 17 or peers without unduly distracting them or exhibiting behavioral extremes, 18 interacting appropriately with the general public, and dealing with normal work 19 stress. (T at 373-74). 20 She described Plaintiff as having marked restrictions with 11 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 respect to activities of dialing living, extreme difficulties in maintaining social 2 functioning, and extreme difficulties in maintaining concentration, persistence, or 3 pace. (T at 375). Dr. Simmons anticipated that Plaintiff would be absent from work 4 more than 4 days per month due to his impairments or treatment. (T at 376). 5 B. 6 Dr. Elena Shabash, a psychiatrist, completed an examination and medical 7 source statement in July of 2015.3 She assessed significant limitations with regard to 8 essentially all aspects of Plaintiff’s understanding and memory, concentration, 9 mental abilities, social interaction, and adaptive skills. (T at 378-79). Dr. Shabash 10 opined that Plaintiff would miss more than 3 days of work each month due to his 11 impairments or treatment. (T at 380). 12 described Plaintiff as guarded, irritable, anxious, and depressed, with chronic 13 paranoid thoughts, delusions of reference, partial insight/judgment, and severe 14 problems with memory and concentration. (T at 420). Dr. Shabash In her examination notes, Dr. Shabash 15 C. 16 Dr. Boris Vaisman, Plaintiff’s primary care doctor, treated Plaintiff between 17 July of 2012 and May of 2014. Dr. Vaisman provided a letter dated November 4, Dr. Vaisman 18 3 19 20  It appears Plaintiff only saw Dr. Shabash on a single occasion, possibly for the purpose of obtaining the above-referenced evaluation. (T at 30). 12 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 2014, in which he described Plaintiff as “unemployable” due to “debilitating 2 depression and anxiety.” (T at 369). 3 D. 4 Dr. Jenny Zhu, a neurologist, treated Plaintiff between February and August 5 of 2014. Dr. Zhu submitted a letter dated October 31, 2014, explaining that Plaintiff 6 suffered from chronic daily headaches, poor memory, difficulty concentrating, 7 depression, lack of energy, and irritability. (T at 368). Dr. Zhu opined that Plaintiff 8 was not able to work during the time period when he was being seen in her clinic. (T 9 at 368). Dr. Zhu 10 E. 11 Dr. Lou Ellen Sherrill, a clinical psychologist, completed a psychological 12 consultative examination in May of 2014. Dr. Sherrill diagnosed dysthymia, and 13 anxiety disorder, secondary to medical problems. (T at 312-13). She opined that 14 Plaintiff could perform simple and repetitive tasks with minimal supervision and 15 with appropriate persistence and pace over a normal work cycle. (T at 313). Dr. 16 Sherrill concluded that Plaintiff could understand, remember, and carry out simple to 17 moderately complex verbal instructions without difficulty; tolerate ordinary work 18 pressures; interact with others without difficulty; and observe basic work and safety 19 standards without difficulty. (T at 313). 20 Dr. Sherrill/R.E. Brooks 13 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 The non-examining State Agency review consultant, Dr. R.E. Brooks, opined 2 in June of 2014, that Plaintiff did not have any severe psychological impairments. (T 3 at 101-102). 4 F. 5 The ALJ afforded great weight to the opinions of Dr. Sherrill and Dr. Brooks, 6 and rejected the assessments of Drs. Simmons, Shabash, Vaisman, and Zhu. (T at 7 28-31). ALJ’s Consideration of Medical Opinion Evidence 8 This case is rather confounding in that there is a dramatic divergence between 9 the two groups of opinions – on the one hand, Drs. Sherrill and Brooks found no 10 severe impairment and virtually no limitation, while the other doctors 11 (Simmons/Shabash/Vaisman/Zhu) assessed very significant limitations that would 12 practically preclude Plaintiff from performing basic work activities. 13 This Court recognizes that it is the role of the Commissioner, not this Court, to 14 resolve conflicts in evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 15 1989). If the evidence supports more than one rational interpretation, this Court may 16 not substitute its judgment for that of the Commissioner. Allen v. Heckler, 749 F.2d 17 577, 579 (9th 1984). If there is substantial evidence to support the administrative 18 findings, or if there is conflicting evidence that will support a finding of either 19 20 14 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 disability or nondisability, the Commissioner’s finding is conclusive. Sprague v. 2 Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 3 With that said, the ALJ’s rationale for relying on the Sherrill/Brooks opinions, 4 while discounting entirely the Simmons/Shabash/Vaisman/Zhu assessments, was 5 inadequate, and cannot be sustained. 6 First, the opinions of Dr. Vaisman and Dr. Zhu were presumptively entitled to 7 greatest weight, as they actually treated Plaintiff over an extended period of time. 8 This Court recognizes that neither physician is a mental health professional and their 9 opinions were rather conclusory in nature. However, their conclusions were 10 consistent with those rendered by a psychologist (Dr. Simmons) and psychiatrist 11 (Dr. Shabash). The ALJ does not appear to have considered this consistency when 12 deciding to reject the two treating physician opinions. 13 Moreover, the ALJ’s primary reason for discounting the treating physicians’ 14 opinions was flawed. The ALJ noted that Plaintiff had three jobs during 2013 and 15 2014, the period during which Dr. Vaisman and Dr. Zhu opined that he was 16 unemployable. The ALJ concluded that the physicians were “presumably unaware” 17 of Plaintiff’s employment and assumed that, if they were aware of it, they would 18 have changed their assessments. (T at 29-30). However, Plaintiff was fired from all 19 three jobs after a few weeks. (T at 44-45, 343). Thus, it is entirely possible the 20 15 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 treating physicians were aware of these failed employment attempts and viewed 2 them as evidence that Plaintiff could not sustain basic work activities due to his 3 mental health symptoms. The ALJ gives no indication that he accounted for this 4 possibility. Rather, he (1) assumed ignorance on the part of the treating physicians 5 (without contacting them to verify his assumption) and (2) viewed Plaintiff’s brief, 6 failed employment attempts as ipso facto contradicting his treating physicians’ 7 conclusions. This was error. 8 Second, the ALJ’s consideration of the examining physicians’ opinions was 9 flawed. The ALJ discounted the opinions of Dr. Simmons and Dr. Shabash because 10 they only saw Plaintiff on one occasion. This is, however, also true of Dr. Sherrill, 11 whose opinion was given great weight by the ALJ. (T at 29). Moreover, he ALJ 12 “affirm[ed]” the opinion of Dr. Brooks, who never saw Plaintiff. 13 ALJ provides no rationale for finding a single examination limitation problematic 14 with respect to Dr. Simmons and Dr. Shabash, but not as to Dr. Sherrill and that of 15 Dr. Brooks, who never saw Plaintiff. (T at 29). The 16 The ALJ does not appear to have accounted for the fact that the 17 Simmons/Shabash opinions, although based on single examinations, were consistent 18 with the assessments of the treating physicians (Vaisman and Zhu). 19 20 16 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB This 1 consistency would tend to enhance the credibility of the Simmons/Shabash opinions, 2 but it does not appear the ALJ considered this. 3 The ALJ also discounted Dr. Simmons’s opinion on the grounds that “she 4 appears to have been consulted for forensic purposes of the present claim rather than 5 as a source for treatment.” (T at 30). However, “[t]he purpose for which medical 6 reports are obtained does not provide a legitimate basis for rejecting them,” unless 7 there is evidence demonstrating impropriety, and the ALJ identified no such 8 evidence. Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995); see also Reddick v. 9 Chater, 157 F.3d 715, 726 (9th Cir. 1998). 10 The ALJ likewise speculated that Dr. Shabash was consulted “in an effort to 11 generate evidence for this claim on appeal,” rather than “in an attempt to seek 12 treatment for symptoms.” (T at 30). However, Dr. Shabash examined Plaintiff 13 through the Veteran’s Administration, where Plaintiff regularly received medical 14 treatment. (T at 419-21). 15 In sum, this Court finds that the ALJ’s decision cannot be sustained. It is 16 important to recognize that the ALJ found that Plaintiff did not satisfy the “low bar” 17 of establishing a severe impairment. Gardner v. Astrue, 257 F. App'x 28, 29 (9th Cir. 18 2007). This finding required the ALJ to accept entirely the opinions of Dr. Sherrill 19 and Dr. Brooks and discount completely the findings of Drs. Vaisman, Zhu, 20 17 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 Shabash, and Simmons. This Court finds that the ALJ did not provide legally 2 sufficient reasons to justify such an extreme finding. 3 If the ALJ had synthesized the findings of the various providers in a manner 4 supported by substantial evidence and found severe impairments with at least some 5 degree 6 Vaisman/Zhu/Shabash/Simmons assessments), this Court’s conclusion might have 7 been different. of limitation (albeit perhaps not as severe as the 8 There does appear to be a lack of consistent mental health treatment and the 9 opinions of Dr. Sherrill and Dr. Brooks do provide support for a finding of less 10 extreme limitations than those assessed by the other providers. For example, Dr. 11 Sherrill performed a mental status examination and found Plaintiff oriented in all 12 dimensions, showing adequate effort, able to speak clearly and understand 13 instructions and questions without difficulty, not showing any symptoms of 14 cognitive impairment, normal mood and affect, relatively good common sense 15 judgment, friendly disposition, and adequate intelligence, memory, and emotional 16 stability. (T at 310-312). 17 Although this is not sufficient to sustain the ALJ’s conclusion that Plaintiff 18 has no severe impairments, it is not clear from the record that Plaintiff is disabled. 19 In other words, while it is clear from the record that Plaintiff has a severe mental 20 18 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 health impairment or combination of impairments, it is not clear from the record that 2 Plaintiff is disabled within the meaning of the Social Security Act. 3 For this reason, this Court finds that a remand for further proceedings is the 4 appropriate remedy. See Strauss v. Comm’r of Soc. Sec., 635 F.3d 1135, 1138 (9th 5 Cir. 2011)(“Ultimately, a claimant is not entitled to benefits under the statute unless 6 the claimant is, in fact, disabled, no matter how egregious the ALJ’s errors may 7 be.”). On remand, the ALJ should review the evidence and determine whether 8 further development of the record is necessary (i.e. by asking the treating physicians 9 to provide further detail as to their knowledge of Plaintiff’s sporadic employment 10 and as to the basis for their opinions). In addition, the ALJ should carefully consider 11 whether the seemingly conflicting range of opinions can be synthesized to form a 12 conclusion about Plaintiff’s residual functional capacity 13 Given the ALJ’s serious errors and failure to properly develop the record, as 14 outlined above, remand to a different ALJ is necessary and is hereby directed. See 15 Reed v. Massanari, 270 F.3d 838, 845 (9th Cir. 2001); Balladarez v. Colvin, No. CV 16 13-9490-MAN, 2014 U.S. Dist. LEXIS 174444, at *43-44 (C.D. Cal. Dec. 16, 17 2014). 18 The Court also finds time to be of the essence. Plaintiff has waited more than 19 three years for a proper adjudication of his application. Accordingly, it is ordered 20 19 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 that within 180 days of the date of this Decision and Order, the Commissioner shall 2 conduct further proceedings as outlined above and issue a decision that accords 3 proper weight to all of the medical source opinions of record and provides legally 4 sufficient reasons for its conclusions regarding whether Plaintiff is disabled within 5 the meaning of the Social Security Act. See Butts v. Barnhart, 416 F.3d 101, 103-06 6 (2d Cir. 2005) (affirming imposition of time limits for a decision on the remand); 7 Baldree v. Colvin, 2015 U.S. Dist. LEXIS 127169 *15 (C.D. Cal. Sept. 21, 8 2015)(collecting cases recognizing court’s authority to impose time limits). 9 10 11 12 13 14 15 16 17 18 19 20 20 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB 1 V. ORDERS 2 IT IS THEREFORE ORDERED that: 3 Judgment be entered REVERSING the Commissioner’s decision and 4 REMANDING this case for further proceedings as outlined above, including 5 assignment to a different ALJ and compliance with the deadline established herein; 6 and 7 The Clerk of the Court shall file this Decision and Order, serve copies upon 8 counsel for the parties, and CLOSE this case without prejudice to a timely 9 application for attorneys’ fees. 10 11 12 DATED this 25th day of July, 2017, /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 DECISION AND ORDER – BEEMAN v BERRYHILL 2:16-CV-1811-VEB

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