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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JUAN PABLO PANIAGUA,

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Plaintiff,
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v.
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CAROLYN W. COLVIN, ACTING
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COMMISSIONER OF SOCIAL
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SECURITY,
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Defendant.
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______________________________)

NO. CV 16-3513-JLS(E)

REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

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This Report and Recommendation is submitted to the Honorable

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Josephine L. Staton, United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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On May 20, 2016, Plaintiff filed a complaint, seeking review of

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the Administration’s denial of disability benefits.

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2016, Plaintiff filed a “Motion for Remand, etc.”

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2017, Defendant filed a “Motion for Summary Judgment and Opposition to

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Plaintiff’s Motion for Remand.”

On October 21,
On January 11,

The Court has taken the matter under

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submission without oral argument.

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See L.R. 7-15; “Order,” filed

May 26, 2016.

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BACKGROUND

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Plaintiff asserts disability since April 27, 2009, based on a

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combination of alleged physical and mental/psychological problems

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(Administrative Record (“A.R.”) 52-56, 73-76, 98, 200-12).

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benefits, the Administrative Law Judge (“ALJ”) found severe physical

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impairments but no severe mental/psychological impairments (A.R. 21-

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35).

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review (A.R. 1-6).

In denying

The Appeals Council considered additional evidence, but denied

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the

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Administration’s decision to determine if: (1) the Administration’s

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findings are supported by substantial evidence; and (2) the

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Administration used correct legal standards.

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Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

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499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner,

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682 F.3d 1157, 1161 (9th Cir. 2012).

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relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.”

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(1971) (citation and quotations omitted); see also Widmark v.

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Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

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See Carmickle v.

Substantial evidence is “such

Richardson v. Perales, 402 U.S. 389, 401

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If the evidence can support either outcome, the court may

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not substitute its judgment for that of the ALJ.

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Commissioner’s decision cannot be affirmed simply by

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isolating a specific quantum of supporting evidence.

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Rather, a court must consider the record as a whole,

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weighing both evidence that supports and evidence that

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detracts from the [administrative] conclusion.

But the

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and
quotations omitted).

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Where, as here, the Appeals Council considered additional

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evidence but denied review, the additional evidence becomes part of

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the record for purposes of the Court’s analysis.

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Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers

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new evidence in deciding whether to review a decision of the ALJ, that

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evidence becomes part of the administrative record, which the district

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court must consider when reviewing the Commissioner’s final decision

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for substantial evidence”; expressly adopting Ramirez v. Shalala, 8

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F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d

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1228, 1231 (2011) (courts may consider evidence presented for the

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first time to the Appeals Council “to determine whether, in light of

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the record as a whole, the ALJ’s decision was supported by substantial

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evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953,

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957 n.7 (9th Cir. 1993) (“the Appeals Council considered this

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information and it became part of the record we are required to review

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as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).

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See Brewes v.

DISCUSSION

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After consideration of the record as a whole, the Magistrate

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Judge recommends that the Court reverse the Administration’s decision

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in part and remand the matter for further administrative proceedings.

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As discussed below, the Administration materially erred in the

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evaluation of whether Plaintiff’s alleged mental/psychological

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impairments are “severe.”

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Social Security Ruling (“SSR”) 85-28 governs the evaluation of
whether an alleged impairment is “severe”:

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An impairment or combination of impairments is found “not

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severe” . . . when medical evidence establishes only a

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slight abnormality or a combination of slight abnormalities

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which would have no more than a minimal effect on an

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individual’s ability to work . . . i.e., the person’s

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impairment(s) has no more than a minimal effect on his or

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her physical or mental ability(ies) to perform basic work

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activities. . . .

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If such a finding [of non-severity] is not clearly

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established by medical evidence, however, adjudication must

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continue through the sequential evaluation process.

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* * *

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Great care should be exercised in applying the not severe

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impairment concept.

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determine clearly the effect of an impairment or combination

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of impairments on the individual’s ability to do basic work

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activities, the sequential evaluation process should not end

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with the not severe evaluation step.

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continued.

If an adjudicator is unable to

Rather, it should be

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SSR 85-28 at *3-4;1 see also Smolen v. Chater, 80 F.3d 1273, 1290 (9th

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Cir. 1996) (the severity concept is “a de minimis screening device to

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dispose of groundless claims”); accord Webb v. Barnhart, 433 F.3d 683,

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686-87 (9th Cir. 2005).

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In the present case, the medical evidence does not “clearly

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establish” the non-severity of Plaintiff’s alleged mental/

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psychological impairments.

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psychiatrist, Dr. Daniel P. Flynn found impaired recent memory and

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“somewhat dysphoric” mental status (A.R. 510).

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“adjustment disorder” and “depressive disorder,” prescribed anti-

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depressant and anti-anxiety medications, and rated Plaintiff’s global

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On examination, Plaintiff’s treating

Dr. Flynn diagnosed

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Social Security rulings are binding on the
Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1
(9th Cir. 1990).
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assessment of functioning (“GAF”) at 42.2

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GAF of 42 may well denote a mental/psychological impairment of

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disabling severity.

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*3 (D. Or. Jan. 18, 2001) (GAF of 45 “is indicative of a disabling

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level of impairment”).

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assessments, but even Dr. Gary D. Bartell (the only other physician

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who examined Plaintiff for purposes of evaluating Plaintiff’s mental

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impairments) conceded that Plaintiff’s “ability to deal with stress in

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the work situation due to depression is mild to moderately impair[ed]”

(A.R. 510-12, 533, 546).

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See, e.g., Casteneda v. Apfel, 2001 WL 210175, at

Other physicians disagreed with Dr. Flynn’s

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(A.R. 525).

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with respect to Plaintiff’s alleged mental psychological impairments

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violated SSR 85-28 and the Ninth Circuit authorities cited above.

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Given the lack of clarity in the medical evidence, Plaintiff’s alleged

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mental/psychological impairments should not have fallen victim to the

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“de minimis screening device” designed to “dispose of groundless

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claims.”

At a minimum, therefore, the ALJ’s “non-severity” finding

See Smolen v. Chater, 80 F.3d at 1290.

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Defendant suggests, inter alia, that the treatment notes in the

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record do not justify Dr. Flynn’s assessments.

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this suggestion may have some force on the present record, the ALJ

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erred by failing to develop the record further concerning the actual

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bases for Dr. Flynn’s assessments before deciding that those

Assuming arguendo that

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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.
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assessments did not even justify a “severity” finding.

“The ALJ has a

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special duty to fully and fairly develop the record and to assure that

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the claimant’s interests are considered.

This duty exists even when

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the claimant is represented by counsel.”

Brown v. Heckler, 713 F.2d

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441, 443 (9th Cir. 1983); accord Garcia v. Commissioner, 768 F.3d 925,

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930 (9th Cir. 2014); see also Sims v. Apfel, 530 U.S. 103, 110-11

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(2000) (“Social Security proceedings are inquisitorial rather than

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adversarial.

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develop the arguments both for and against granting benefits. . . .”);

It is the ALJ’s duty to investigate the facts and

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Widmark v. Barnhart, 454 F.3d at 1068 (while it is a claimant’s duty

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to provide the evidence to be used in making a residual functional

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capacity determination, “the ALJ should not be a mere umpire during

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disability proceedings”) (citations and internal quotations omitted);

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Smolen v. Chater, 80 F.3d at 1288 (“If the ALJ thought he needed to

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know the basis of Dr. Hoeflich’s opinions in order to evaluate them,

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he had a duty to conduct an appropriate inquiry, for example, by

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subpoenaing the physicians or submitting further questions to them.

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He could also

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(citations omitted).

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“especially important” “in cases of mental impairments.”

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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.

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The weight the law generally accords to the opinion of a treating

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physician buttresses the conclusion that the Administration erred.

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See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (treating

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physician’s conclusions “must be given substantial weight”); Winans v.

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Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (even where the treating

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physicians opinions are contradicted, “if the ALJ wishes to disregard
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the opinion[s] of the treating physician [the ALJ] . . . must make

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findings setting forth specific, legitimate reasons for doing so that

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are based on substantial evidence in the record”).

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The Court is unable to deem the Administration’s errors to have

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been harmless.

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(9th Cir. 2012) (an error “is harmless where it is inconsequential to

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the ultimate nondisability determination”) (citations and quotations

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omitted).

See generally McLeod v. Astrue, 674 F.3d 1104, 1115

Because the circumstances of this case suggest that further

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administrative review could remedy the errors, remand is appropriate.

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Id. at 888; see also INS v. Ventura, 537 U.S. 12, 16 (2002) (upon

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reversal of an administrative determination, the proper course is

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remand for additional agency investigation or explanation, except in

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rare circumstances); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir.

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2015) (“Unless the district court concludes that further

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administrative proceedings would serve no useful purpose, it may not

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remand with a direction to provide benefits”); Treichler v.

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Commissioner, 775 F.3d 1090, 1101 n.5 (9th Cir. 2014) (remand for

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further administrative proceedings is the proper remedy “in all but

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the rarest cases”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th

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Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further

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proceedings rather than for the immediate payment of benefits is

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appropriate where there are “sufficient unanswered questions in the

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record”).

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RECOMMENDATION

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For the foregoing reasons,3 IT IS RECOMMENDED that the Court

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issue an Order: (1) accepting and adopting this Report and

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Recommendation; and (2) directing that Judgment be entered reversing

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in part the decision of the Administration and remanding the matter

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for further administrative action consistent with this Report and

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Recommendation.

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DATED: January 19, 2017.

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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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The Court need not and does not reach any other issue
raised by Plaintiff.
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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

No notice of appeal pursuant to the

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