Rebecca Suh Schledorn v. Carolyn W. Colvin

Filing 29

MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi: IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (kh)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 REBECCA SUH SCHLEDORN, Plaintiff, v. NANCY A. BERRYHILL1, Acting Commissioner of Social Security, Defendant. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) Case No. LA CV 16-2357 JCG MEMORANDUM OPINION AND ORDER Rebecca Suh Schledorn (“Plaintiff”) challenges the Social Security 19 Commissioner (“Commissioner”)’s decision denying her application for disability 20 benefits.2 Specifically, Plaintiff contends that the Administrative Law Judge (“ALJ”) 21 improperly discounted the opinion of her threating psychiatrist, Dr. Ebrahim Hazany, 22 and in turn improperly terminated her claim at step two by failing to find a severe 23 24 25 26 27 28 1 The Court DIRECTS the Clerk of Court to update the case caption to reflect Nancy A. Berryhill as the proper Defendant. See Fed. R. Civ. P. 25(d). 2 Plaintiff was initially found disabled due to her marked depression and anxiety symptoms. The Agency later found that her disability ceased. (Administrative Record (“AR”) at 60-62, 67-71.) 1 1 mental impairment based on that opinion.3 (See Joint Stipulation (“Joint Stip.”) at 5- 2 11.) The Court agrees with Plaintiff for the reasons discussed below. As a rule, if an ALJ wishes to disregard the opinion of a treating or examining 3 4 physician, “he or she must make findings setting forth specific, legitimate reasons for 5 doing so that are based on substantial evidence in the record.” Murray v. Heckler, 722 6 F.2d 499, 502 (9th Cir. 1983); accord Carmickle v. Comm’r, Soc. Sec. Admin., 533 7 F.3d 1155, 1164 (9th Cir. 2008). Here, the ALJ improperly declined to credit Dr. Hazany’s opinion4 for two 8 9 reasons. First, the ALJ improperly rejected the opinion because there was no 10 11 corroborating objective medical evidence, including supporting treatment notes. (AR 12 at 18, 413-16); see Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (“To say 13 that medical opinions are not supported by sufficient objective findings or are contrary 14 to the preponderant conclusions mandated by the objective findings does not achieve 15 the level of specificity our prior cases have required, even when the objective factors 16 are listed seriatim.”); Vaughn v. Comm’r Soc. Sec. Admin., 2012 WL 28561, *5 (D. Or. 17 Jan. 4, 2012) (“[T]he general reference to inconsistency with the medical evidence of 18 record is not a specific reason [to reject a treating physician’s opinion]. It is simply too 19 vague to allow meaningful review.”). In particular, (1) the psychiatrist noted Plaintiff 20 was treated with a “vagal nerve stimulator”5; (2) the psychiatrist noted that Plaintiff 21 22 23 24 25 26 27 28 3 The threshold inquiry at step two is whether a claimant is suffering from a severe impairment. 20 C.F.R. § 404.1520(a)(4)(ii). The step two inquiry is defined as “‘a de minimis screening device to dispose of groundless claims.’” Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001, as amended) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). 4 Dr. Hazany diagnosed Plaintiff with “major depression” with a guarded prognosis. (AR at 13.) He opined that overall she was markedly limited in her functioning, and that she had at least 10 specific marked mental-health limitations and numerous moderate limitations. (AR at 413-16.) 5 “Vagus nerve stimulation is a procedure that involves implantation of a device that stimulates the vagus nerve with electrical impulses. . . . Vagus nerve stimulation is most often used to treat 2 1 had significant symptoms despite high levels of antidepressants; and (3) treatment 2 notes supported this treatment. (AR at 387, 405-06, 408, 413, 416, 418-20, 422, 424, 3 427.) Second, the ALJ’s conclusion that it “appeared” that the treating psychiatrist 4 5 relied heavily on the subjective complaints of Plaintiff — without citation to evidence 6 of this in the psychiatrist’s opinion or treatment notes — is not sufficiently specific for 7 appellate review. (AR at 18); Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 8 2015) (federal courts “demand that the agency set forth the reasoning behind its 9 decisions in a way that allows for meaningful review”). Thus, the ALJ improperly assessed the treating psychiatrist’s opinion. 10 11 12 B. Remand is Warranted With error established, this Court has discretion to remand or reverse and award 13 benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful 14 purpose would be served by further proceedings, or where the record has been fully 15 developed, it is appropriate to direct an immediate award of benefits. Benecke v. 16 Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). But where outstanding issues must be 17 resolved before a determination can be made, or where the record does not make clear 18 that proper evaluation of the evidence would require a disability finding, remand is 19 appropriate. Id. at 594. 20 Here, in light of the error, Plaintiff’s treating psychiatrist’s opinion must be 21 reassessed. Therefore, on remand, the ALJ shall evaluate the opinion and either credit 22 it as true, or provide valid reasons for any rejected portion. The Court shall also 23 24 25 26 27 28 epilepsy when other treatments haven’t worked. Vagus nerve stimulation is also a treatment for hardto-treat depression that hasn’t responded to typical therapies.” Mayo Clinic, (last visited Sept. 12, 2017); Bast v. Sec’y of Health & Human Servs, 2012 WL 6858040, at *17 (Fed. Cl. Dec. 20, 2012); see also Morris v. Colvin, 2013 WL 1729007, at *7 (D. Kan. Apr. 22, 2013) (noting medical expert testimony that treatment with a vagal nerve stimulator usually leads to an automatic determination that the claimant meets a disability listing); (AR at 86). 3 1 reevaluate whether, in light of the de minimus threshold standard at step two, the 2 treating psychiatrist’s opinion, treatment notes, and remaining record establish that 3 Plaintiff has a medically severe impairment or combination of impairments. See 4 Edlund, 253 F.3d at 1158. If so, the ALJ shall continue the analysis of Plaintiff’s 5 claim through the remaining steps. 6 Finally, the Court is mindful that “the touchstone for an award of benefits is the 7 existence of a disability, not the agency’s legal error.” Brown-Hunter, 806 F.3d at 495. 8 Because it is unclear, on this record, whether Plaintiff is in fact disabled, remand here 9 is on an “open record.” Id.; Burrell v. Colvin, 775 F.3d 1133, 1141-42 (9th Cir. 2014). 10 The parties may freely take up any issue raised in the Joint Stipulation, and any other 11 issues relevant to resolving Plaintiff’s claim of disability, before the ALJ. Either party 12 may address those points in the remanded, open proceeding. 13 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 14 REVERSING the decision of the Commissioner denying benefits and REMANDING 15 the matter for further administrative action consistent with this decision. 16 17 18 19 20 DATED: September 12, 2017 ____________ __ ________________________ Hon. Jay C. Gandhi United States Magistrate Judge *** 21 22 23 24 This Memorandum Opinion and Order is not intended for publication. Nor is it intended to be included or submitted to any online service such as Westlaw or Lexis. *** 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?