Juan Pablo Paniagua v. Carolyn W. Colvin

Filing 30

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Charles F. Eick. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that: (1) the decision of the Social Security Administration is reversed in part; and (2) the matter is remanded for further administrative action consistent with the Report and Recommendation. (Attachments: # 1 Report and Recommendation) (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JUAN PABLO PANIAGUA, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL ) SECURITY, ) ) Defendant. ) ______________________________) NO. CV 16-3513-JLS(E) REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 17 18 This Report and Recommendation is submitted to the Honorable 19 Josephine L. Staton, United States District Judge, pursuant to 28 20 U.S.C. section 636 and General Order 05-07 of the United States 21 District Court for the Central District of California. 22 PROCEEDINGS 23 24 On May 20, 2016, Plaintiff filed a complaint, seeking review of 25 the Administration’s denial of disability benefits. 26 2016, Plaintiff filed a “Motion for Remand, etc.” 27 2017, Defendant filed a “Motion for Summary Judgment and Opposition to 28 Plaintiff’s Motion for Remand.” On October 21, On January 11, The Court has taken the matter under 1 submission without oral argument. 2 See L.R. 7-15; “Order,” filed May 26, 2016. 3 BACKGROUND 4 5 6 Plaintiff asserts disability since April 27, 2009, based on a 7 combination of alleged physical and mental/psychological problems 8 (Administrative Record (“A.R.”) 52-56, 73-76, 98, 200-12). 9 benefits, the Administrative Law Judge (“ALJ”) found severe physical 10 impairments but no severe mental/psychological impairments (A.R. 21- 11 35). 12 review (A.R. 1-6). In denying The Appeals Council considered additional evidence, but denied 13 STANDARD OF REVIEW 14 15 16 Under 42 U.S.C. section 405(g), this Court reviews the 17 Administration’s decision to determine if: (1) the Administration’s 18 findings are supported by substantial evidence; and (2) the 19 Administration used correct legal standards. 20 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 21 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 22 682 F.3d 1157, 1161 (9th Cir. 2012). 23 relevant evidence as a reasonable mind might accept as adequate to 24 support a conclusion.” 25 (1971) (citation and quotations omitted); see also Widmark v. 26 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 27 /// 28 /// See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 2 1 If the evidence can support either outcome, the court may 2 not substitute its judgment for that of the ALJ. 3 Commissioner’s decision cannot be affirmed simply by 4 isolating a specific quantum of supporting evidence. 5 Rather, a court must consider the record as a whole, 6 weighing both evidence that supports and evidence that 7 detracts from the [administrative] conclusion. But the 8 9 10 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted). 11 12 Where, as here, the Appeals Council considered additional 13 evidence but denied review, the additional evidence becomes part of 14 the record for purposes of the Court’s analysis. 15 Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers 16 new evidence in deciding whether to review a decision of the ALJ, that 17 evidence becomes part of the administrative record, which the district 18 court must consider when reviewing the Commissioner’s final decision 19 for substantial evidence”; expressly adopting Ramirez v. Shalala, 8 20 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 21 1228, 1231 (2011) (courts may consider evidence presented for the 22 first time to the Appeals Council “to determine whether, in light of 23 the record as a whole, the ALJ’s decision was supported by substantial 24 evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953, 25 957 n.7 (9th Cir. 1993) (“the Appeals Council considered this 26 information and it became part of the record we are required to review 27 as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 28 /// 3 See Brewes v. DISCUSSION 1 2 3 After consideration of the record as a whole, the Magistrate 4 Judge recommends that the Court reverse the Administration’s decision 5 in part and remand the matter for further administrative proceedings. 6 As discussed below, the Administration materially erred in the 7 evaluation of whether Plaintiff’s alleged mental/psychological 8 impairments are “severe.” 9 10 11 Social Security Ruling (“SSR”) 85-28 governs the evaluation of whether an alleged impairment is “severe”: 12 13 An impairment or combination of impairments is found “not 14 severe” . . . when medical evidence establishes only a 15 slight abnormality or a combination of slight abnormalities 16 which would have no more than a minimal effect on an 17 individual’s ability to work . . . i.e., the person’s 18 impairment(s) has no more than a minimal effect on his or 19 her physical or mental ability(ies) to perform basic work 20 activities. . . . 21 22 If such a finding [of non-severity] is not clearly 23 established by medical evidence, however, adjudication must 24 continue through the sequential evaluation process. 25 26 * * * 27 /// 28 /// 4 1 Great care should be exercised in applying the not severe 2 impairment concept. 3 determine clearly the effect of an impairment or combination 4 of impairments on the individual’s ability to do basic work 5 activities, the sequential evaluation process should not end 6 with the not severe evaluation step. 7 continued. If an adjudicator is unable to Rather, it should be 8 9 SSR 85-28 at *3-4;1 see also Smolen v. Chater, 80 F.3d 1273, 1290 (9th 10 Cir. 1996) (the severity concept is “a de minimis screening device to 11 dispose of groundless claims”); accord Webb v. Barnhart, 433 F.3d 683, 12 686-87 (9th Cir. 2005). 13 14 In the present case, the medical evidence does not “clearly 15 establish” the non-severity of Plaintiff’s alleged mental/ 16 psychological impairments. 17 psychiatrist, Dr. Daniel P. Flynn found impaired recent memory and 18 “somewhat dysphoric” mental status (A.R. 510). 19 “adjustment disorder” and “depressive disorder,” prescribed anti- 20 depressant and anti-anxiety medications, and rated Plaintiff’s global 21 /// 22 /// 23 /// 24 /// 25 /// On examination, Plaintiff’s treating Dr. Flynn diagnosed 26 27 28 1 Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 5 1 assessment of functioning (“GAF”) at 42.2 2 GAF of 42 may well denote a mental/psychological impairment of 3 disabling severity. 4 *3 (D. Or. Jan. 18, 2001) (GAF of 45 “is indicative of a disabling 5 level of impairment”). 6 assessments, but even Dr. Gary D. Bartell (the only other physician 7 who examined Plaintiff for purposes of evaluating Plaintiff’s mental 8 impairments) conceded that Plaintiff’s “ability to deal with stress in 9 the work situation due to depression is mild to moderately impair[ed]” (A.R. 510-12, 533, 546). A See, e.g., Casteneda v. Apfel, 2001 WL 210175, at Other physicians disagreed with Dr. Flynn’s 10 (A.R. 525). 11 with respect to Plaintiff’s alleged mental psychological impairments 12 violated SSR 85-28 and the Ninth Circuit authorities cited above. 13 Given the lack of clarity in the medical evidence, Plaintiff’s alleged 14 mental/psychological impairments should not have fallen victim to the 15 “de minimis screening device” designed to “dispose of groundless 16 claims.” At a minimum, therefore, the ALJ’s “non-severity” finding See Smolen v. Chater, 80 F.3d at 1290. 17 18 Defendant suggests, inter alia, that the treatment notes in the 19 record do not justify Dr. Flynn’s assessments. 20 this suggestion may have some force on the present record, the ALJ 21 erred by failing to develop the record further concerning the actual 22 bases for Dr. Flynn’s assessments before deciding that those Assuming arguendo that 23 2 24 25 26 27 28 Clinicians use the GAF scale to rate “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th Ed. 2000 (Text Revision)). A GAF between 41 and 50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Id. 6 1 assessments did not even justify a “severity” finding. “The ALJ has a 2 special duty to fully and fairly develop the record and to assure that 3 the claimant’s interests are considered. This duty exists even when 4 the claimant is represented by counsel.” Brown v. Heckler, 713 F.2d 5 441, 443 (9th Cir. 1983); accord Garcia v. Commissioner, 768 F.3d 925, 6 930 (9th Cir. 2014); see also Sims v. Apfel, 530 U.S. 103, 110-11 7 (2000) (“Social Security proceedings are inquisitorial rather than 8 adversarial. 9 develop the arguments both for and against granting benefits. . . .”); It is the ALJ’s duty to investigate the facts and 10 Widmark v. Barnhart, 454 F.3d at 1068 (while it is a claimant’s duty 11 to provide the evidence to be used in making a residual functional 12 capacity determination, “the ALJ should not be a mere umpire during 13 disability proceedings”) (citations and internal quotations omitted); 14 Smolen v. Chater, 80 F.3d at 1288 (“If the ALJ thought he needed to 15 know the basis of Dr. Hoeflich’s opinions in order to evaluate them, 16 he had a duty to conduct an appropriate inquiry, for example, by 17 subpoenaing the physicians or submitting further questions to them. 18 He could also 19 (citations omitted). 20 “especially important” “in cases of mental impairments.” 21 Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). have continued the hearing to augment the record.”) An ALJ’s duty to develop the record is DeLorme v. 22 23 The weight the law generally accords to the opinion of a treating 24 physician buttresses the conclusion that the Administration erred. 25 See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (treating 26 physician’s conclusions “must be given substantial weight”); Winans v. 27 Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (even where the treating 28 physicians opinions are contradicted, “if the ALJ wishes to disregard 7 1 the opinion[s] of the treating physician [the ALJ] . . . must make 2 findings setting forth specific, legitimate reasons for doing so that 3 are based on substantial evidence in the record”). 4 5 The Court is unable to deem the Administration’s errors to have 6 been harmless. 7 (9th Cir. 2012) (an error “is harmless where it is inconsequential to 8 the ultimate nondisability determination”) (citations and quotations 9 omitted). See generally McLeod v. Astrue, 674 F.3d 1104, 1115 Because the circumstances of this case suggest that further 10 administrative review could remedy the errors, remand is appropriate. 11 Id. at 888; see also INS v. Ventura, 537 U.S. 12, 16 (2002) (upon 12 reversal of an administrative determination, the proper course is 13 remand for additional agency investigation or explanation, except in 14 rare circumstances); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 15 2015) (“Unless the district court concludes that further 16 administrative proceedings would serve no useful purpose, it may not 17 remand with a direction to provide benefits”); Treichler v. 18 Commissioner, 775 F.3d 1090, 1101 n.5 (9th Cir. 2014) (remand for 19 further administrative proceedings is the proper remedy “in all but 20 the rarest cases”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th 21 Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further 22 proceedings rather than for the immediate payment of benefits is 23 appropriate where there are “sufficient unanswered questions in the 24 record”). 25 /// 26 /// 27 /// 28 /// 8 RECOMMENDATION 1 2 3 For the foregoing reasons,3 IT IS RECOMMENDED that the Court 4 issue an Order: (1) accepting and adopting this Report and 5 Recommendation; and (2) directing that Judgment be entered reversing 6 in part the decision of the Administration and remanding the matter 7 for further administrative action consistent with this Report and 8 Recommendation. 9 10 DATED: January 19, 2017. 11 12 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 28 The Court need not and does not reach any other issue raised by Plaintiff. 9 1 2 NOTICE Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. No notice of appeal pursuant to the 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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