Denise Christine Little v. Carolyn W. Colvin

Filing 20

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 action for further proceedings consistent with this Decision and Order, and it is further ORDERED that The Clerk of the Court file this Decision and Order and serve copies upon counsel for the parties. (wr)

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1 O 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 8 Case No. 2:16-CV-05129 (VEB) DENISE CHRISTINE LITTLE, 9 DECISION AND ORDER Plaintiff, 10 vs. 11 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 12 13 14 Defendant. I. INTRODUCTION 15 In April of 2012, Plaintiff Denise Christine Little applied for Disability 16 Insurance benefits and Supplemental Security Income (“SSI”) benefits under the 17 Social Security Act. The Commissioner of Social Security denied the applications. 18 Plaintiff, by and through her attorneys, Law Offices of Lawrence D. Rohlfing, 19 Brian C. Shapiro, Esq., of counsel, commenced this action seeking judicial review of 20 1 DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-VEB 1 the Commissioner’s denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 2 (c)(3). 3 The parties consented to the jurisdiction of a United States Magistrate Judge. 4 (Docket No. 11, 12, 17). On November 8, 2016, this case was referred to the 5 undersigned pursuant to General Order 05-07. (Docket No. 16). 6 II. BACKGROUND 7 Plaintiff applied for Disability Insurance benefits and SSI benefits on April 9 8 and 23, 2012, respectively, alleging disability beginning September 3, 2010. (T at 9 207-16, 230).1 10 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). 11 12 The applications were denied initially and on reconsideration. On March 2, 2014, a hearing was held before ALJ James D. Goodman. (T at 39). Plaintiff appeared with her attorney and testified. (T at 51-83). 13 On July 25, 2014, the issued a written decision denying the applications for 14 benefits. 15 decision on May 13, 2016, when the Appeals Council denied Plaintiff’s request for 16 review. (T at 1-7). (T at 19-38). The ALJ’s decision became the Commissioner’s final 17 On July 12, 2016, Plaintiff, acting by and through her counsel, filed this action 18 seeking judicial review of the Commissioner’s denial of benefits. (Docket No. 1). 19 1  20 Citations to (“T”) refer to the administrative record at Docket No. 15. 2 DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-VEB 1 The Commissioner interposed an Answer on October 25, 2016. (Docket No. 14). 2 Plaintiff filed a supporting Brief on November 16, 2016. (Docket No. 18). The 3 Commissioner filed a Brief in opposition on December 7, 2016. (Docket No. 19). 4 After reviewing the pleadings, briefs, and administrative record, this Court 5 finds that the Commissioner’s decision must be reversed and this case remanded for 6 further administrative proceedings. 7 8 9 III. DISCUSSION A. Sequential Evaluation Process 10 The Social Security Act (“the Act”) defines disability as the “inability to 11 engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which has 13 lasted or can be expected to last for a continuous period of not less than twelve 14 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 15 claimant shall be determined to be under a disability only if any impairments are of 16 such severity that he or she is not only unable to do previous work but cannot, 17 considering his or her age, education and work experiences, engage in any other 18 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 19 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 20 3 DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-VEB 1 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 2 The Commissioner has established a five-step sequential evaluation process 3 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 4 one determines if the person is engaged in substantial gainful activities. If so, 5 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 6 decision maker proceeds to step two, which determines whether the claimant has a 7 medically severe impairment or combination of impairments. 20 C.F.R. §§ 8 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 9 If the claimant does not have a severe impairment or combination of 10 impairments, the disability claim is denied. If the impairment is severe, the 11 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 12 with a number of listed impairments acknowledged by the Commissioner to be so 13 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 14 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 15 equals one of the listed impairments, the claimant is conclusively presumed to be 16 disabled. If the impairment is not one conclusively presumed to be disabling, the 17 evaluation proceeds to the fourth step, which determines whether the impairment 18 prevents the claimant from performing work which was performed in the past. If the 19 claimant is able to perform previous work, he or she is deemed not disabled. 20 20 4 DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-VEB 1 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 2 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 3 work, the fifth and final step in the process determines whether he or she is able to 4 perform other work in the national economy in view of his or her residual functional 5 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 6 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 7 The initial burden of proof rests upon the claimant to establish a prima facie 8 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 9 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 10 is met once the claimant establishes that a mental or physical impairment prevents 11 the performance of previous work. The burden then shifts, at step five, to the 12 Commissioner to show that (1) plaintiff can perform other substantial gainful 13 activity and (2) a “significant number of jobs exist in the national economy” that the 14 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 15 B. Standard of Review 16 Congress has provided a limited scope of judicial review of a Commissioner’s 17 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 18 made through an ALJ, when the determination is not based on legal error and is 19 20 5 DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-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 – LITTLE v COLVIN 2:16-CV-05129-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 had not engaged in substantial gainful 10 activity since December 10, 2010, the alleged onset date, and met the insured status 11 requirements of the Social Security Act through December 31, 2015 (the “date last 12 insured”). (T at 25). 13 disease, depression with suicidal ideation, anxiety, and chronic pain syndrome were 14 “severe” impairments under the Act. (Tr. 25). The ALJ found that Plaintiff’s degenerative lumbar disc 15 However, the ALJ concluded that Plaintiff did not have an impairment or 16 combination of impairments that met or medically equaled one of the impairments 17 set forth in the Listings. (T at 25). 18 The ALJ determined that Plaintiff retained the residual functional capacity 19 (“RFC”) to perform sedentary work, as defined in 20 CFR § 404.1567 (a), with the 20 7 DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-VEB 1 following limitations: Plaintiff could lift/carry and push/pull up to 10 pounds 2 occasionally and less than that frequently; stand/walk up to 6 hours in an 8-hour 3 workday; sit up to 6 hours in an 8-hour workday for 20 minutes at a time; perform 4 less than occasional climbing, bending, kneeling, stooping, and crawling and 5 occasional reaching above shoulder level with both extremities. (T at 27). 6 In addition, the ALJ concluded that Plaintiff must avoid concentrated 7 exposure to respiratory irritants and may not perform more than occasional complex 8 technical work, although she may perform a full range of simple routine work. (T at 9 27). Per the ALJ, Plaintiff may have less than occasional contact with the general 10 public and occasional contact with co-workers and supervisors and may perform 11 work at a stress level of 3 on a scale of 1 to 10 (with 10 being the most stressful). (T 12 at 27). 13 The ALJ found that Plaintiff could not perform her past relevant work as a 14 warehouse worker, fast food manager, motor vehicle assembler, or outside deliverer. 15 (T at 30). Considering Plaintiff’s age (40 years old on the alleged onset date), 16 education (marginal), work experience, and residual functional capacity, the ALJ 17 found that jobs exist in significant numbers in the national economy that Plaintiff 18 can perform. (T at 31). 19 20 8 DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-VEB 1 Accordingly, the ALJ determined that Plaintiff was not disabled within the 2 meaning of the Social Security Act between December 10, 2010 (the alleged onset 3 date) and July 25, 2014 (the date of the decision) and was therefore not entitled to 4 benefits. (T at 32). As noted above, the ALJ’s decision became the Commissioner’s 5 final decision when the Appeals Council denied Plaintiff’s request for review. (T at 6 1-7). 7 D. Disputed Issue 8 Plaintiff offers one argument in support of her claim that the Commissioner’s 9 decision should be reversed. She argues that the ALJ did not properly assess the 10 opinion of her treating physician. 11 12 IV. ANALYSIS 13 In disability proceedings, a treating physician’s opinion carries more weight 14 than an examining physician’s opinion, and an examining physician’s opinion is 15 given more weight than that of a non:-examining physician. Benecke v. Barnhart, 16 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 17 1995). If the treating or examining physician’s opinions are not contradicted, they 18 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 19 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 20 9 DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-VEB 1 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 2 1035, 1043 (9th Cir. 1995). 3 The courts have recognized several types of evidence that may constitute a 4 specific, legitimate reason for discounting a treating or examining physician’s 5 medical opinion. For example, an opinion may be discounted if it is contradicted by 6 the medical evidence, inconsistent with a conservative treatment history, and/or is 7 based primarily upon the claimant’s subjective complaints, as opposed to clinical 8 findings and objective observations. See Flaten v. Secretary of Health and Human 9 Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 10 An ALJ satisfies the “substantial evidence” requirement by “setting out a 11 detailed and thorough summary of the facts and conflicting clinical evidence, stating 12 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 13 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 14 “The ALJ must do more than state conclusions. He must set forth his own 15 interpretations and explain why they, rather than the doctors’, are correct.” Id. 16 In this case, Dr. Elizabeth Gil, Plaintiff’s treating psychologist, performed an 17 initial assessment in July of 2012. She diagnosed major depressive disorder and 18 alcohol dependence (partial remission) and assigned a Global Assessment of 19 20 10 DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-VEB 1 Functioning (“GAF”) score2 of 40 (T at 492). “A GAF score of 31-40 indicates 2 some impairment in reality testing or communication (e.g., speech is at times 3 illogical, obscure, or irrelevant) or major impairment in several areas such as work 4 or school, family relations, judgment, thinking or mood.” Tagin v. Astrue, No. 11- 5 cv-05120, 2011 U.S. Dist. LEXIS 136237 at *8 n.1 (W.D.Wa. Nov. 28, 6 2011)(citations omitted). 7 Dr. Gil completed a mental RFC assessment in October of 2012. She 8 described Plaintiff as suffering from the following symptoms: poor memory, sleep 9 disturbance, mood disturbance, feelings of guilt or worthlessness, difficulty 10 concentrating or thinking, decreased energy, and generalized persistent anxiety. (T at 11 522). Dr. Gill opined that Plaintiff’s experience of symptoms would often interfere 12 with her attention and concentration would cause her to be absent from work three or 13 more times a month. (T at 523). She assessed some evidence of limitations with 14 regard to Plaintiff’s understanding and memory, ability to sustain concentration and 15 persistence, ability to make occupational adjustments, and social interaction skills. 16 (T at 523-24). 17 18 19 “A GAF score is a rough estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). 20 11 2  DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-VEB 1 The ALJ did not mention Dr. Gil’s assessment. This Court finds this to be a 2 serious error. “Where an ALJ does not explicitly reject a medical opinion or set 3 forth specific, legitimate reasons for crediting one medical opinion over another, he 4 errs. In other words, an ALJ errs when he rejects a medical opinion or assigns it little 5 weight while doing nothing more than ignoring it, asserting without explanation that 6 another medical opinion is more persuasive, or criticizing it with boilerplate 7 language that fails to offer a substantive basis for his conclusion.” Garrison v. 8 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). 9 Such an error is particularly troubling where, as here, there is support in the 10 record for the treating provider’s conclusion that Plaintiff would likely be absent 11 from work three or more times per month due her symptoms. (T at 523). Dr. Pedro 12 Olea and Dr. Phyllis Cohen, treating physicians, likewise opined that Plaintiff was 13 likely to have frequent work absences due to her symptoms or treatment. (T at 520, 14 923). 15 The ALJ discounted Dr. Cohen’s opinion as it related to Plaintiff’s mental 16 health impairments as “beyond [her] area of expertise ….” (T at 29). (Dr. Cohen is a 17 family practitioner). However, the ALJ did not discuss the fact that Dr. Cohen’s 18 conclusion that Plaintiff would likely be absent from work more than 4 days per 19 month due to her impairments (T at 520) was consistent with the assessment of Dr. 20 12 DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-VEB 1 Gil, who is a mental health professional. The ALJ also said he was giving 2 “significant weight to the opinions of the mental health practitioners at West Valley 3 Mental Health” without identifying them (T at 30), but then did not address the 4 opinion provided by Dr. Gil (who is a mental health practitioner at West Valley 5 Mental Health). 6 The ALJ said that he gave “greatest weight” to the opinion of Dr. Karl 7 Manders, a medical expert who reviewed the record and provided responses to 8 written interrogatories. (T at 30). However, Dr. Manders opined that Plaintiff’s 9 medication would impact her “ability to pursue vocational activity without absence 10 from work 2-3 days [per] month.” (T at 998). He also explained that chronic pain 11 syndrome was frequently associated with depression, the absence of motivation, and 12 other psychological problems that would increase “the likelihood of work absences.” 13 (T at 1015). 14 Dr. Manders qualified his assessment by stating that his opinion was 15 speculative and indicated that the issue was “better answered by a psychologist.” (T 16 at 1016). 17 addressing this aspect of the expert’s opinion and without discussing the fact that a 18 psychologist (Dr. Gil) had answered the question of work absences by opining that The ALJ gave “greatest weight” to Dr. Manders’s opinion, without 19 20 13 DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-VEB 1 Plaintiff would likely have a significant number of such absences due to her mental 2 health impairments. 3 The Commissioner argues that the ALJ was not bound to accept Dr. Gil’s 4 opinion because, as of October 2012 when she provided her assessment, Plaintiff 5 had only been treating with West Valley Mental Health Center for a few months 6 and, thus, Dr. Gil had not established a significant treating relationship with 7 Plaintiff. However, this justification was not offered by the ALJ. “Long-standing 8 principles of administrative law require us to review the ALJ's decision based on the 9 reasoning and factual findings offered by the ALJ — not post hoc rationalizations 10 that attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm'r, 11 554 F.3d 1219, 1226 (9th Cir. 2009). 12 Moreover, even if Dr. Gil’s opinion was arguably not entitled to controlling 13 weight because she was not technically a “treating physician,” that would not justify 14 the ALJ’s overall failure to address the opinion and/or to give careful consideration 15 to the important issue of work absences, which was noted by Dr. Gil, Dr. Manders, 16 Dr. Olea, and Dr. Cohen. 17 B. Remand 18 In a case where the ALJ's determination is not supported by substantial 19 evidence or is tainted by legal error, the court may remand the matter for additional 20 14 DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-VEB 1 proceedings or an immediate award of benefits. Remand for additional proceedings 2 is proper where (1) outstanding issues must be resolved, and (2) it is not clear from 3 the record before the court that a claimant is disabled. See Benecke v. Barnhart, 379 4 F.3d 587, 593 (9th Cir. 2004). 5 Here, this Court finds that remand for further proceedings is warranted. 6 Although the ALJ erred by failing to address Dr. Gil’s assessment regarding work 7 absences, the treating relationship between Plaintiff and Dr. Gil is unclear, as is the 8 basis for Dr. Gil’s work absence assessment. The treatment notes and assessments 9 from Dr. Stephen Simonian (a consultative psychiatric examiner) and Dr. R. Singh 10 (a non-examining State Agency review consultant) provide some support for the 11 ALJ’s overall assessment. (T at 29-30, 132, 500-505). Dr. Simonian opined that 12 Plaintiff had no limitations with regard to maintaining regular attendance in the 13 workplace or performing work activities on a consistent basis. (T at 504). Dr. Singh 14 opined that Plaintiff could perform at least simple routine tasks. (T at 132). 15 Although this evidence is not sufficient to sustain the ALJ’s decision, given 16 the serious error in failing to adequately address the opinion evidence regarding 17 work absences, it is sufficient to create doubt as to whether Plaintiff is disabled. As 18 such, a remand for further proceedings is the appropriate remedy. See Strauss v. 19 Comm’r of Soc. Sec., 635 F.3d 1135, 1138 (9th Cir. 2011)(“Ultimately, a claimant is 20 15 DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-VEB 1 not entitled to benefits under the statute unless the claimant is, in fact, disabled, no 2 matter how egregious the ALJ’s errors may be.”). On remand, the ALJ should give 3 careful consideration the evidence concerning work absences, consider re-contacting 4 the treating sources to the extent the ALJ finds their opinions and/or treating 5 relationships unclear, and reassess Plaintiff’s RFC in that light. 6 7 8 V. ORDERS IT IS THEREFORE ORDERED that: 9 Judgment be entered REVERSING the Commissioner’s decision and 10 REMANDING this action for further proceedings consistent with this Decision and 11 Order, and it is further ORDERED that 12 13 14 The Clerk of the Court file this Decision and Order and serve copies upon counsel for the parties. DATED this 3rd day of April, 2017. 15 16 17 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 18 19 20 16 DECISION AND ORDER – LITTLE v COLVIN 2:16-CV-05129-VEB

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