Jason Gregory County v. Carolyn W Colvin

Filing 25

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. (See document for further details). (mr)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 JASON GREGORY COUNTY, 12 No. CV 16-3592 SS Plaintiff, 13 v. 14 MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL,1 Acting Commissioner of the Social Security Administration, 15 16 Defendant. 17 18 19 20 I. 21 INTRODUCTION 22 23 Jason Gregory County (“Plaintiff”) seeks review of the final 24 decision of the Commissioner of the Social Security Administration 25 (the “Commissioner” or the “Agency”) denying his application for 26 social security benefits. 27 28 The parties consented, pursuant to Nancy A. Berryhill is now the Acting Commissioner of Social Security and is substituted for former Acting Commissioner Carolyn W. Colvin in this case. See Fed. R. Civ. P. 25(d). 1 1 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United 2 States 3 decision of the Commissioner is REVERSED and this case is REMANDED 4 for 5 decision. Magistrate further Judge. For administrative the reasons proceedings stated consistent below, the with this claimant must 6 7 II. 8 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 9 10 To qualify for disability benefits, a 11 demonstrate a medically determinable physical or mental impairment 12 that prevents him from engaging in substantial gainful activity 13 and that is expected to result in death or to last for a continuous 14 period of at least twelve months. 15 721 16 impairment must render the claimant incapable of performing the 17 work he previously performed and incapable of performing any other 18 substantial gainful employment that exists in the national economy. 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 42 U.S.C. § 423(d)(2)(A)). (9th Cir. 1998) (citing 42 Reddick v. Chater, 157 F.3d 715, U.S.C. § 423(d)(1)(A)). The 21 22 To decide if a claimant is entitled to benefits, an ALJ 23 conducts a five-step inquiry. 24 steps are: 20 C.F.R. §§ 404.1520, 416.920. 25 26 (1) Is the claimant presently engaged in substantial 27 gainful activity? 28 disabled. If so, the claimant is found not If not, proceed to step two. 2 The 1 (2) Is the claimant’s impairment severe? 2 claimant is found not disabled. 3 If not, the step three. 4 (3) If so, proceed to Does the claimant’s impairment meet or equal one of 5 the specific impairments described in 20 C.F.R. 6 Part 404, Subpart P, Appendix 1? 7 claimant is found disabled. 8 step four. 9 (4) If so, the If not, proceed to Is the claimant capable of performing his past 10 work? 11 If not, proceed to step five. 12 (5) If so, the claimant is found not disabled. Is the claimant able to do any other work? If not, 13 the claimant is found disabled. If so, the claimant 14 is found not disabled. 15 16 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 17 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. 18 §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 19 20 The claimant has the burden of proof at steps one through 21 four, and the Commissioner has the burden of proof at step five. 22 Bustamante, 262 F.3d at 953-54. 23 affirmative duty to assist the claimant in developing the record 24 at every step of the inquiry. 25 claimant meets his burden of establishing an inability to perform 26 past work, the Commissioner must show that the claimant can perform 27 some 28 national economy, taking into account the claimant’s residual other work that exists Additionally, the ALJ has an Id. at 954. in 3 If, at step four, the “significant numbers” in the 1 functional capacity (“RFC”), age, education, and work experience. 2 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 3 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 4 so by the testimony of a vocational expert or by reference to the 5 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, 6 Subpart P, Appendix 2 (commonly known as “the Grids”). 7 v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 8 has 9 limitations, the Grids are inapplicable and the ALJ must take the both exertional The Commissioner may do (strength-related) Osenbrock When a claimant and non-exertional 10 testimony of a vocational expert. 11 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 12 (9th Cir. 1988)). Moore v. Apfel, 216 F.3d 864, 13 14 III. 15 THE ALJ’S DECISION 16 17 The ALJ employed the five-step sequential evaluation process 18 in evaluating Plaintiff’s case. 19 Plaintiff met the insured status requirements of the Act through 20 December 31, 2015, and had not engaged in substantial gainful 21 activity since June 8, 2010, his alleged onset date. 22 Administrative Record (“AR”) 30). 23 Plaintiff 24 herpetic meningoencephalitis; 25 disorder due 26 associated with general medical condition. 27 that Plaintiff’s medically determinable impairment of “abdominal 28 pain and problems” was nonsevere. had the to following general At step one, the ALJ found that At step two, the ALJ found that severe impairments: vascular medical 4 (Certified headache condition; (AR 31). history syndrome; and (AR 30). pain of mood disorder The ALJ ruled 1 At step three, the ALJ found that Plaintiff did not have an 2 impairment or combination of impairments that met or medically 3 equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart 4 P, Appendix 1. (AR 31-32). 5 6 At step four, the ALJ determined that Plaintiff had the RFC 7 to perform light work with the following limitations: lift and 8 carry 20 pounds occasionally and 10 pounds frequently; stand, walk, 9 and/or sit for six hours in an eight-hour workday; occasionally 10 climb ladders, ropes, and scaffolds; frequently climb ramps and 11 stairs; “should avoid” concentrated exposure to hazards; limited 12 to work involving simple repetitive tasks, no more than occasional 13 contact with coworkers, and no public contact. (AR 32). 14 15 In determining Plaintiff’s RFC, the ALJ partially rejected 16 the 17 Wendel, Ph.D. as inconsistent with Dr. Wendel’s own notes and with 18 other medical evidence. 19 written by Plaintiff’s treating neurologist, Dr. Pari Young, M.D., 20 but the ALJ did not assign this letter any particular weight. 21 36). 22 agency medical consultants, but he rejected a 2011 State agency 23 assessment on an earlier disability application as “overstat[ing]” 24 Plaintiff’s condition. opinion of psychiatric consultative (AR 36). examiner Dr. Isadore The ALJ also discussed a letter (AR The ALJ assigned “great weight” to the opinions of State (AR 37). 25 26 At step four, the ALJ determined that Plaintiff could not 27 perform his past relevant work. 28 considered Plaintiff’s age, education, work experience, and RFC (AR 37). 5 At step five, the ALJ 1 and 2 significant numbers in the national economy, including small parts 3 assembler, garment folder, and textile assembler. 4 Accordingly, the ALJ concluded that Plaintiff was not disabled 5 under the Agency’s rules. concluded that Plaintiff could perform jobs available in (AR 37-38). (AR 39). 6 7 IV. 8 STANDARD OF REVIEW 9 10 Under 42 U.S.C. § 405(g), a district court may review the 11 Commissioner’s decision to deny benefits. 12 the Commissioner’s decision when the ALJ’s findings are based on 13 legal error or are not supported by “substantial evidence” in the 14 record as a whole. 15 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. 16 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 17 885 F.2d 597, 601 (9th Cir. 1989)). The court may set aside Aukland v. Massanari, 257 F.3d 1033, 1035 18 19 “Substantial evidence is more than a scintilla, but less than 20 a preponderance.” 21 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 22 evidence which a reasonable person might accept as adequate to 23 support a conclusion.” Id. (citing Jamerson, 112 F.3d at 1066; 24 Smolen, 25 evidence supports a finding, the court must “‘consider the record 26 as a whole, weighing both evidence that supports and evidence that 27 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 28 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 80 F.3d Reddick, 157 F.3d at 720 (citing Jamerson v. at 1279). To 6 determine It is “relevant whether substantial 1 1993)). 2 or reversing that conclusion, the court may not substitute its 3 judgment for that of the Commissioner. 4 21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). If the evidence can reasonably support either affirming Reddick, 157 F.3d at 720- 5 6 V. 7 DISCUSSION 8 9 Plaintiff alleges that the ALJ erred in three ways. First, 10 Plaintiff contends that the ALJ improperly rejected his subjective 11 complaints as not entirely credible. 12 Points and Authorities (“Plaintiff’s Memo”) at 3-6). 13 Plaintiff contends that the ALJ erred in assessing an RFC that did 14 not 15 irritable bowel syndrome (“IBS”). 16 contends that the ALJ improperly analyzed medical evidence from 17 Dr. Wendel and Dr. Young, as well as the findings of the State 18 agency consultants. include limitations related to (Plaintiff’s Memorandum of Plaintiff’s (Id. at 6-8). Second, headaches and Third, Plaintiff (Id. at 8-11). 19 20 For the reasons discussed below, the Court agrees with 21 Plaintiff that this case should be remanded to permit the ALJ to 22 properly evaluate the medical evidence from Dr. Young and the State 23 agency consultants and assess an RFC that properly accounts for 24 Plaintiff’s headaches and IBS.2 25 26 27 28 Because the Court remands on these grounds, it is unnecessary to address Plaintiff’s arguments regarding the ALJ’s rejection of Plaintiff’s subjective complaints. 2 7 1 The 2 Impairments Supported By The Record, And The ALJ Did Not 3 Properly Evaluate The Medical Evidence ALJ’s RFC Failed To Include Limitations For All 4 5 A. Legal Standards 6 7 During step four of the five-step process, the ALJ must make 8 a threshold determination as to the claimant’s residual function. 9 This determination is an administrative finding reached after 10 consideration 11 diagnoses, 12 Plaintiff’s own subjective symptoms. See generally Social Security 13 Ruling (“SSR”) 96-5p, 1996 WL 374183 (SSA 1996). 14 a claimant can still do despite existing limitations. 15 C.F.R. § 404.1545(a)(1); see also SSR 96-8p, 1996 WL 374184, at 16 *1-*2 (SSA 1996) (“RFC is an assessment of an individual’s ability 17 to do sustained work-related physical and mental activities in a 18 work setting on a regular and continuing basis. A ‘regular and 19 continuing basis’ means 8 hours a day, for 5 days a week, or an 20 equivalent work schedule.”); Cooper v. Sullivan, 880 F.2d 1152, 21 1155 n.5 (9th Cir. 1989). In evaluating RFC, the ALJ must “consider 22 subjective symptoms such as fatigue and pain.” 23 1291. of all treatment, the relevant observations, evidence, medical including records, and the the The RFC is what See 20 Smolen, 80 F.3d at 24 25 In evaluating a claimant’s RFC, an ALJ must properly analyze 26 the medical evidence. 27 (9th Cir. 2012). 28 social security cases: See Hill v. Astrue, 698 F.3d 1153, 1159-60 There are three types of medical opinions in the opinions of (1) treating physicians 8 1 who examine and treat, (2) examining physicians who examine but do 2 not treat, and (3) non-examining physicians who neither examine 3 nor treat. 4 Opinions of treating physicians are given the greatest weight 5 because treating physicians are “employed to cure and [have] a 6 greater 7 individual.” 8 1989); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 9 Accordingly, where a treating physician’s opinion is refuted by Valentine v. Comm’r, 574 F.3d 685, 692 (9th Cir. 2009). opportunity to know and observe the patient as an Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 10 another 11 providing specific and legitimate reasons supported by substantial 12 evidence in the record. 13 Cir. 1996) (ALJ must provide clear and convincing reasons for 14 rejecting an unrefuted treating physician’s opinions); see also 15 Ryan v. Comm’r, 528 F.3d 1194, 1198 (9th Cir. 2008). doctor, the ALJ may not reject this opinion without Lester v. Chater, 81 F.3d 821, 830-31 (9th 16 17 B. Analysis 18 19 At step four, the ALJ determined that Plaintiff had the RFC 20 to perform light work with the following limitations: lift and 21 carry 20 pounds occasionally and 10 pounds frequently; stand, walk, 22 and/or sit for six hours in an eight-hour workday; occasionally 23 climb ladders, ropes, and scaffolds; frequently climb ramps and 24 stairs; “should avoid” concentrated exposure to hazards; limited 25 to work involving simple repetitive tasks, no more than occasional 26 contact with coworkers, and no public contact. 27 28 9 (AR 32). 1 The Court agrees with Plaintiff that the medical evidence is 2 not 3 acknowledged, the record documents extensively that Plaintiff “has 4 had chronic, severe headaches.” (AR 35). However, the RFC assessed 5 does not appear to account for this condition. 6 stated that he did not find the “persistent headaches problem” 7 itself to be “disabling,” (AR 35), and noted that the headaches 8 were “treated with medications,” (AR 35), he did not satisfactorily 9 explain why chronic, severe headaches would have no impact on 10 adequately reflected in the RFC. First, as the ALJ Although the ALJ Plaintiff’s ability to work. 11 12 This is particularly troubling given the ALJ’s somewhat 13 selective characterization of the record. 14 stated 15 [Plaintiff] had a dramatic improvement of his migraine severity 16 and frequency, he had become dramatically less photophobic, and he 17 is [sic] continuing not to take any medications and no narcotics.” 18 (AR 19 “continued” and he was placed “back on medications in November 20 2012.” 21 Plaintiff had discontinued narcotics and “over-the-counter” and 22 “p.r.n.” medications, but he was taking Depakote twice daily. 23 538). 24 improvement” after starting Depakote, (AR 538), Plaintiff developed 25 a tremor and elevated liver function test results and had to be 26 “weaned off” Depakote as a result. 27 after being “weaned off” Depakote, Plaintiff reported that he was 28 suffering from “severe and unrelenting” daily headaches and was that 35). “[t]he The (AR 36). ALJ progress later notes noted in that For example, the ALJ July 2012 showed Plaintiff’s that headaches The July 2012 progress note actually states that (AR More significantly, although Plaintiff reported “dramatic 10 (AR 539). By November 2012, 1 “extremely photophobic.” (AR 541). 2 the omits 3 Plaintiff’s improvement was greater and more sustained, and his 4 headaches less severe on an ongoing basis, than the underlying 5 evidence demonstrates. 6 improperly ignored or discounted significant and probative evidence 7 in the record favorable to Hill’s position . . . and thereby 8 provided an incomplete [RFC] determination.”); Attmore v. Colvin, 9 827 F.3d 872, 877 (9th Cir. 2016) (ALJ may not focus on isolated evidence improperly The ALJ’s characterization of this context and suggests that See Hill, 698 F.3d at 1161 (“[T]he ALJ 10 periods 11 claimant’s condition); Garrison v. Colvin, 759 F.3d 995, 1018 (9th 12 Cir. 2014) (ALJ was not permitted to “cherry-pick” from mixed 13 results to support a denial of benefits). of improvement without examining broader context of 14 15 Plaintiff’s history of headaches was substantiated in part by 16 a letter and treatment records from Dr. Pari Young, M.D. 17 February 2012 note, Dr. Young stated that, in 2010, Plaintiff had 18 been diagnosed with and treated for herpes simplex encephalitis 19 and had suffered from “severe migraines and headaches” following 20 that diagnosis. (AR 531). At that time, Plaintiff reported chronic 21 daily headaches with severe headaches occurring six or seven times 22 every month. 23 and began to treat his headaches regularly after that with a variety 24 of prescription medications. (See AR 535-37 (March 2012 progress 25 note and 26 progress note (“weaning off” Depakote due to high liver function 27 test and development of tremor)), 541-43 (November 2012 progress 28 note (prescribing Topamax)), 544-46 (December 2012 progress note (AR 531). (prescribing In a Dr. Young reviewed Plaintiff’s records Depakote 11 Imitrex)), 538-40 (July 2012 1 (Plaintiff 2 Topamax)), 559-61 (May 2013 progress note (Plaintiff reporting 3 “much worsening” of bad headache days since March 2013 bout of 4 pneumonia; increasing Topamax to “seizure doses”)), 567-69 (August 5 2013 progress note (Plaintiff discontinued Topamax after developing 6 kidney 7 (December 2013 progress note (prescribing propranolol))). reported stones; “somewhat prescribing manageable pain” amitriptyline and since starting Keppra)), 570-72 8 9 In a January 29, 2014 letter, Dr. Young stated that she had 10 treated Plaintiff since February 2012. 11 reported that Plaintiff had “severe, daily headaches that are 12 refractory to medical treatment,” which caused “severe headache 13 pain on a daily basis.” 14 Plaintiff 15 medications and others had been ineffective, but she was “pursuing 16 a referral to the Headache and Facial Pain center at UCLA.” 17 583). had had (AR 583). “severe side (AR 583). Dr. Young Dr. Young further reported that effects” from some headache (AR 18 19 The ALJ did not assign the letter any particular weight, but 20 the ALJ appeared to conclude that the letter and Dr. Young’s 21 treatment records were either irrelevant to Plaintiff’s allegations 22 of disability or not credible because Dr. Young never explicitly 23 recommended any restrictions on Plaintiff’s ability to work. 24 36). 25 restrictions, it is error to conclude that severe, daily headaches 26 would have no impact on Plaintiff’s ability to work, as would be 27 required to properly exclude them from consideration for an RFC. 28 At most, Dr. Young’s records were ambiguous on this issue, and it Although Dr. Young never 12 explicitly assigned any (AR work 1 was the ALJ’s duty to develop the record further, Tonapetyan v. 2 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (ambiguous evidence 3 relevant to a finding of disability triggers the ALJ’s duty to 4 develop the record), particularly considering that Plaintiff was 5 unrepresented by counsel during the hearing before the ALJ. 6 AR 47-49); see also Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir. 7 1992) (where claimant is not represented, ALJ must “scrupulously 8 and conscientiously probe into, inquire of, and explore for all 9 the relevant facts” and “be especially diligent in ensuring that (See 10 favorable 11 elicited”). 12 or sought clarification from Dr. Young on this issue, but the ALJ 13 did not do so. Therefore, the ALJ’s analysis of Dr. Young’s opinion 14 was 15 including in the RFC limitations related to Plaintiff’s severe, 16 chronic headaches. as well as unfavorable facts and circumstances are The ALJ could have called a medical expert to testify inadequate, and he provided insufficient reasons for not 17 18 The ALJ also did not provide adequate reasons for excluding 19 from the RFC a restriction that Plaintiff required access to a 20 restroom due to IBS. 21 disability application, State agency medical consultant Dr. L. 22 Bobba, M.D., reported that, “considering pain due to headaches,” a 23 sedentary RFC “w hazardous precautions [was] appropriate,” and Dr. 24 Bobba further noted that Plaintiff needed “easy access to rest room 25 facilities due to diarrhea due to IBS.” 26 agency 27 Plaintiff’s RFC was “LIGHT . . . with some limits,” then similarly 28 noted that Plaintiff would require “[b]ath room access for IBS.” medical In 2011, in the course of evaluating a prior consultant Keith 13 (AR 91). Quint, M.D., In 2012, State stated that 1 (AR 109-10, 128, 133). 2 also documented throughout the medical evidence by a variety of 3 doctors. 4 03). Plaintiff’s chronic diarrhea and IBS were (AR 418, 447-50, 453, 456, 481-85, 491-92, 496-97, 502- 5 6 The RFC omits without meaningful explanation any limitations 7 related to Plaintiff’s IBS. 8 impairments, the ALJ found that Plaintiff’s “abdominal pain and 9 problems” were medically determinable but nonsevere because his 10 conditions were being “managed medically,” with no “aggressive 11 treatment” recommended, and the condition would be “amenable to 12 proper control by adherence to recommended medical management and 13 medication compliance.” 14 rejected 15 previously recommended a base RFC of “sedentary” as “overstat[ing]” 16 Plaintiff’s condition. 17 recent assessment is consistent with the current evidence.” 18 37). the opinions In evaluating Plaintiff’s severe (AR 31). of the (AR 37). Additionally, the ALJ later State agency consultants who The ALJ ruled that “the more (AR 19 20 Preliminarily, it is unclear whether the ALJ’s finding that 21 Plaintiff’s “abdominal pain and problems” can be managed medically 22 with no aggressive treatment obviates a finding that Plaintiff may 23 require frequent access to a bathroom during work hours. 24 event, the failure to find “abdominal pain and problems” severe at 25 step 26 limitations at step four, as an ALJ formulating an RFC “must 27 consider 28 individual’s impairments, even those that are ‘not severe.’” SSR two does not limitations prevent and the ALJ restrictions 14 from considering imposed by all In any these of an 1 96–8p, 1996 WL 374184, at *5 (“While a ‘not severe’ impairment[] 2 standing alone may not significantly limit an individual’s ability 3 to do basic work activities, it may 4 limitations or restrictions due to other impairments -- be critical 5 to the outcome of a claim.”). 6 the earlier opinions of State agency medical consultants because 7 more recent opinions were “consistent with the current evidence,” 8 this finding is vague. 9 Cir. 1988) (“To say that medical opinions [of treating physicians] 10 are not supported by sufficient objective findings or are contrary 11 to the preponderant conclusions mandated by the objective findings 12 does not achieve the level of specificity our prior cases have 13 required.”). 14 earlier 15 recommendation regarding Plaintiff’s ability to access a bathroom. 16 Therefore, the ALJ’s analysis of the State agency consultants’ 17 opinions was inadequate, and he provided insufficient reasons for 18 not including in the RFC limitations related to Plaintiff’s IBS. -- when considered with To the extent that the ALJ rejected Cf. Embrey v. Bowen, 849 F.2d 418, 421 (9th Moreover, even if the ALJ had properly rejected the assessment by Dr. Bobba, Dr. Quint made the same 19 20 For the foregoing reasons, the matter is remanded for further 21 proceedings. 22 and the medical evidence consistent with this Order. On remand, the ALJ should reassess Plaintiff’s RFC 23 24 25 26 27 28 15 1 VI. 2 CONCLUSION 3 4 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 5 the decision of the Commissioner and REMANDING this matter for 6 further proceedings consistent with this decision. 7 ORDERED that the Clerk of the Court serve copies of this Order and 8 the Judgment on counsel for both parties. IT IS FURTHER 9 10 DATED: June 9, 2017 11 12 13 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 14 15 16 17 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 18 19 20 21 22 23 24 25 26 27 28 16

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