Julio Leon v. Carolyn W. Colvin

Filing 23

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 calculation of benefits, and it is further ORDERED that The Clerk of the Court shall file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case without prejudice to a timely application for attorneys' fees and costs. (wr)

Download PDF
O 1 2 3 UNITED STATES DISTRICT COURT 4 CENTRAL DISTRICT OF CALIFORNIA 5 Case No. 2:16-CV-07204 (VEB) 6 7 JULIO LEON, on behalf of Susana Leon, deceased, DECISION AND ORDER 8 9 10 11 12 13 14 15 Plaintiff, vs. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant. I. INTRODUCTION In March of 2011, Susana Leon (“Claimant”) applied for Disability Insurance benefits under the Social Security Act. The Commissioner of Social Security denied 16 17 18 19 20 1 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 the application.1 Claimant passed away in October of 2014. Plaintiff Julio Leon, 2 Claimant’s husband, has been substituted as the party in interest. 3 Plaintiff, by and through his attorney, Erika Bailey Drake, Esq. commenced 4 this action seeking judicial review of the Commissioner’s denial of benefits pursuant 5 to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 6 The parties consented to the jurisdiction of a United States Magistrate Judge. 7 (Docket No. 17, 19). On November 6, 2017, this case was referred to the 8 undersigned pursuant to General Order 05-07. (Docket No. 22). 9 II. BACKGROUND 10 Claimant applied for Disability Insurance benefits on March 14, 2011, 11 alleging disability beginning January 4, 2011. (T at 58).2 The application was 12 denied initially and on reconsideration. Claimant requested a hearing before an 13 Administrative Law Judge (“ALJ”). 14 On March 18, 2013, a hearing was held before ALJ Mary L. Everstine. (T at 15 38). Claimant appeared with an attorney and testified. (T at 40-52). The ALJ also 16 received testimony from Sharon Spaventa, a vocational expert. (T at 52-54). 17 1  On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The 18 Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure. 19 2 20  Citations to (“T”) refer to the administrative record at Docket No. 15. 2 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 On April 5, 2013, ALJ Everstine issued a written decision denying the 2 application for benefits. (T at 21-36). The Appeals Council denied Claimant’s 3 request for review on July 21, 2014. (T at 1-7). 4 Claimant passed away on October 24, 2014, and Plaintiff was substituted as 5 the party in interest. (T at 642). Plaintiff commenced an action in this Court 6 challenging the denial of benefits. (T at 747-55). On May 29, 2015, the Honorable 7 Victor B. Kenton, United States Magistrate Judge, issued a decision remanding the 8 case for further proceedings. (T at 756-74). 9 A second administrative hearing was held on March 1, 2016, before the same 10 ALJ. Plaintiff appeared with an attorney and offered testimony. (T at 709-15). The 11 ALJ also received additional testimony from Ms. Spiventa, the vocational expert. (T 12 at 715-17). 13 On March 18, 2016, the ALJ issued a decision denying the application for 14 benefits. (T at 639-57). The ALJ’s second decision became the Commissioner’s 15 final decision on July 27, 2016, when the Appeals Council denied Plaintiff’s request 16 for review. (T at 633-38). 17 On September 25, 2016, Plaintiff, acting by and through his counsel, filed this 18 action seeking judicial review of the Commissioner’s denial of benefits. (Docket No. 19 20 3 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 1). The Commissioner interposed an Answer on March 16, 2017. (Docket No. 14). 2 The parties filed a Joint Stipulation on June 15, 2017. (Docket No. 21). 3 After reviewing the pleadings, Joint Stipulation, and administrative record, 4 this Court finds that the Commissioner’s decision must be reversed and this case be 5 remanded for calculation of benefits. 6 7 III. DISCUSSION A. Sequential Evaluation Process 8 The Social Security Act (“the Act”) defines disability as the “inability to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which has 11 lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 13 claimant shall be determined to be under a disability only if any impairments are of 14 such severity that he or she is not only unable to do previous work but cannot, 15 considering his or her age, education and work experiences, engage in any other 16 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 17 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 18 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 19 20 The Commissioner has established a five-step sequential evaluation process 4 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 2 one determines if the person is engaged in substantial gainful activities. If so, 3 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 4 decision maker proceeds to step two, which determines whether the claimant has a 5 medically severe impairment or combination of impairments. 20 C.F.R. §§ 6 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 7 If the claimant does not have a severe impairment or combination of 8 impairments, the disability claim is denied. If the impairment is severe, the 9 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 10 with a number of listed impairments acknowledged by the Commissioner to be so 11 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 12 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 13 equals one of the listed impairments, the claimant is conclusively presumed to be 14 disabled. If the impairment is not one conclusively presumed to be disabling, the 15 evaluation proceeds to the fourth step, which determines whether the impairment 16 prevents the claimant from performing work which was performed in the past. If the 17 claimant is able to perform previous work, he or she is deemed not disabled. 20 18 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 19 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 20 5 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 work, the fifth and final step in the process determines whether he or she is able to 2 perform other work in the national economy in view of his or her residual functional 3 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 4 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 5 The initial burden of proof rests upon the claimant to establish a prima facie 6 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 7 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 8 is met once the claimant establishes that a mental or physical impairment prevents 9 the performance of previous work. The burden then shifts, at step five, to the 10 Commissioner to show that (1) plaintiff can perform other substantial gainful 11 activity and (2) a “significant number of jobs exist in the national economy” that the 12 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 13 B. Standard of Review 14 Congress has provided a limited scope of judicial review of a Commissioner’s 15 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 16 made through an ALJ, when the determination is not based on legal error and is 17 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 18 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 19 20 6 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 “The [Commissioner’s] determination that a plaintiff is not disabled will be 2 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 3 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 4 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 5 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 6 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 7 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 8 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 9 conclusions as the [Commissioner] may reasonably draw from the evidence” will 10 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 11 the Court considers the record as a whole, not just the evidence supporting the 12 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 13 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 14 It is the role of the Commissioner, not this Court, to resolve conflicts in 15 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 16 interpretation, the Court may not substitute its judgment for that of the 17 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 18 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 19 set aside if the proper legal standards were not applied in weighing the evidence and 20 7 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 2 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 3 administrative findings, or if there is conflicting evidence that will support a finding 4 of either disability or non-disability, the finding of the Commissioner is conclusive. 5 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 6 C. Commissioner’s Decision 7 The ALJ determined that Claimant did not engage in substantial gainful 8 activity between January 4, 2011, the alleged onset date, and October 24, 2014, the 9 date of her death. (T at 644). The ALJ found that Claimant met the insured status 10 requirements of the Social Security Act through December 31, 2014 (the “date last 11 insured”). (T at 644). The ALJ found that Claimant’s mild multi-level disc bulges at 12 L2-3 and L5-S1 with small annular fissure at L4-5; status post arthroscopy with 13 chondroplasty right knee; status post arthroscopic repair and partial meniscectomy 14 left knee; migraine headaches; and left hip trochanteric bursitis were “severe” 15 impairments under the Act. (Tr. 644). 16 However, the ALJ concluded that Claimant did not have an impairment or 17 combination of impairments that met or medically equaled one of the impairments 18 set forth in the Listings. (T at 644). 19 20 8 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 The ALJ determined that, as of the date of her death, Claimant retained the 2 residual functional capacity (“RFC”) to perform light work, as defined in 20 CFR 3 §404.1567 (b), except that she was limited to frequent balancing, stooping, 4 crouching, crawling, overheard reaching, gross handling, and fine manipulation. (T 5 at 645). 6 The ALJ found that, as of the date of death, Claimant could perform her past 7 relevant work as a medical assistant (front and back office). (T at 650). 8 Accordingly, the ALJ determined that Claimant was not disabled within the meaning 9 of the Social Security Act between January 4, 2011 (the alleged onset date) and 10 October 24, 2014 (the date of death) and was therefore not entitled to benefits. (T at 11 651). As noted above, the ALJ’s decision became the Commissioner’s final decision 12 when the Appeals Council denied Plaintiff’s request for review. (T at 633-38). 13 D. Disputed Issues 14 As set forth in the Joint Stipulation (Docket No. 21, at p. 4-5), Plaintiff offers 15 four (4) main arguments in support of her claim that the Commissioner’s decision 16 should be reversed. First, she contends that the ALJ violated the rule of mandate. 17 Second, Plaintiff challenges the ALJ’s credibility determination. Third, Plaintiff 18 argues that the ALJ did not properly assess the evidence regarding Claimant’s 19 20 9 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 mental impairment. Fourth, Plaintiff asserts that the ALJ’s analysis of the medical 2 opinion evidence was flawed. This Court will address each argument in turn. 3 4 5 IV. ANALYSIS A. Rule of Mandate 6 In general, the “law of the case” doctrine prohibits a court from considering an 7 issue already decided by the same court, or a higher court, in the same case. Hall v. 8 City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). “The rule of mandate is 9 similar to, but broader than, the law of the case doctrine.” United States v. Cote, 51 10 F.3d 178, 181 (9th Cir. 1995). Under the rule of mandate, a “district court that has 11 received the mandate of an appellate court cannot vary or examine that mandate for 12 any purpose other than executing it.” Hall, 697 F.3d at 1067. However, the district 13 court may “decide anything not foreclosed by the mandate.” Id. 14 The rule of mandate applies in Social Security cases and establishes a duty on 15 the part of the ALJ to comply with the mandate of a district court. See Stacy v. 16 Colvin, 825 F.3d 563, 566 (9th Cir. 2016). Thus, reversal of an ALJ is warranted 17 when the ALJ’s decision “exceed[s] the scope of and/or contravene[s] district court 18 remand orders.” Almarez v. Astrue, No. EDCV 09-00140, 2010 WL 3894646, at *3, 19 2010 U.S. Dist. LEXIS 104314, at *9-10 (C.D. Cal. Sept. 30, 2010). 20 10 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 In the present case, Magistrate Judge Kenton remanded for “a de novo” 2 hearing. (T at 764-69). In particular, Judge Kenton determined that the ALJ’s 3 credibility determination was not supported by clear and convincing evidence, that 4 the ALJ improperly failed to discuss third party lay evidence, and that the ALJ did 5 not sufficiently discuss a treating physician opinion. (T at 764-69). Plaintiff urges 6 this Court to read Judge Kenton’s remand decision as “essentially” ordering the ALJ 7 to find that Claimant had a severe mental impairment and to credit her testimony 8 regarding fibromyalgia symptoms. Plaintiff also contends that the ALJ on remand 9 still did not adequately address the lay evidence or treating physician opinion, 10 contrary to Judge Keaton’s directive. 11 This Court finds no violation of the rule of mandate. Although Judge Keaton 12 was critical of the ALJ’s reasoning and found it insufficient to survive judicial 13 scrutiny, the remand was for a “de novo” hearing, i.e. to reconsider the evidentiary 14 record, including new evidence submitted to the Appeals Council. In other words, 15 while casting doubt on the justifications offered by the ALJ and criticizing the lack 16 of clarity in the ALJ’s decision, Judge Keaton did not make affirmative findings or 17 require any result on remand (other than a de novo reconsideration of the evidence). 18 As such, this Court finds no violation of the rule of mandate. See St. Clair v. 19 Berryhill, No. 3-16-cv-05841, 2017 WL 3866841, 2017 U.S. Dist. LEXIS 143274, 20 11 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 at *10-11 (W.D. Was. Sep’t 5, 2017)(finding no violation of rule of mandate where 2 district court remanded for de novo hearing); Angulo v. Astrue, No. ED CV 12- 3 01426, 2013 WL 3223639, 2013 U.S. Dist. LEXIS 89490, at *9-10 (C.D. Cal. June 4 25, 2013)(finding no violation where district court “included broad language in the 5 [remand] order”). 6 B. Credibility 7 A claimant’s subjective complaints concerning his or her limitations are an 8 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 9 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 10 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 11 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 12 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 13 and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 14 findings are insufficient: rather the ALJ must identify what testimony is not credible 15 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 16 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 17 However, subjective symptomatology by itself cannot be the basis for a 18 finding of disability. A claimant must present medical evidence or findings that the 19 existence of an underlying condition could reasonably be expected to produce the 20 12 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 2 § 404.1529(b), 416.929; SSR 96-7p. 3 In this case, Claimant testified as follows: She completed the 11th grade. She 4 was 58 as of the date of the first administrative hearing. (T at 41). She stopped 5 working in 2010, after being fired due to conflict with a co-worker. (T at 42-43). 6 She had two knee surgeries for knee pain and had back pain, weight gain, frequent 7 migraines, and depression. (T at 44). Medication made her groggy. (T at 43). She 8 took medication for anxiety. (T at 44). She could not sit for sustained periods and 9 needed to be in constant motion. (T at 44). She had memory problems and difficulty 10 concentrating. (T at 44). She was diagnosed with fibromyalgia. (T at 44). Migraines 11 lasted up to two days. (T at 44-45). Her knee and back pain were a 10/10, with only 12 slight relief from medication. (T at 45-46). She took Ativan for anxiety, which 13 provided some relief. (T at 47). Sitting was limited to 10 minutes; standing was 14 limited to about 10 minutes if she could lean against something. (T at 47). She could 15 not lift any weight. (T at 47). She relied on family for routine errands. (T at 47). 16 She attended to personal hygiene with her husband’s assistance. (T at 48). 17 At the 2016 hearing, Plaintiff testified as follows: Prior to her death, Claimant 18 was in constant physical pain, and suffered from depression and anxiety. (T at 710). 19 She was constantly confined to her room and had interpersonal problems (including 20 13 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 throwing a knife at Plaintiff). (T at 711). She believed she attended mental health 2 therapy, but stopped for reasons she never explained. (T at 712). She had difficulty 3 ambulating and fell frequently. (T at 714). She used a cane. (T at 714). She would 4 not go out shopping and was anti-social. (T at 714). 5 The ALJ concluded that Claimant’s medically determinable impairments 6 could reasonably be expected to cause the alleged symptoms, but that the statements 7 of Claimant and Plaintiff regarding the intensity, persistence, and limiting effects of 8 the symptoms were not fully credible. (T at 648). This Court finds the ALJ’s 9 credibility analysis flawed for the following reasons. 10 First, the ALJ improperly discounted Claimant’s testimony regarding her 11 fibromyalgia diagnosis. In particular, the ALJ refused to recognize fibromyalgia on 12 the grounds that (a) the consultative examiner found “only 6 trigger points” and (b) 13 there was a “lack of evidence in the record of objective findings to establish such 14 diagnosis.” (T at 649). 15 “‘fibromyalgia’ without sufficient trigger points, and the use of the term by a 16 physician’s assistant does not establish a diagnosis of fibromyalgia.” (T at 649). In particular, the ALJ explained that a reference to 17 As a threshold matter, the ALJ’s recitation of the record is flawed. Although 18 Dr. Shahrzad Sodagar-Marvasti, the consultative examiner, noted only six trigger 19 20 14 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 points (T at 313),3 the doctor did diagnose fibromyalgia (T at 315). In addition, Dr. 2 Dale Kiker, a treating physician, noted the fibromyalgia diagnosis on multiple 3 occasions without ever suggesting he disagreed with the diagnosis. (T at 849, 859, 4 867). Thus, it was not accurate for the ALJ to state that the only reference to 5 fibromyalgia was by a “physician’s assistant.” 6 Moreover, the ALJ’s demand for “objective findings” to support the 7 fibromyalgia diagnosis was misplaced. Fibromyalgia is diagnosed “entirely on the 8 basis of the patients’ reports of pain and other symptoms.” Benecke v. Barnhart, 379 9 F.3d 587, 590 (9th Cir. 2004). “[T]here are no laboratory tests to confirm the 10 diagnosis." Id.; see also Coleman v. Astrue, 423 F. App'x 754, 755 (9th Cir. 2011) 11 (holding that ALJ erred by “rel[ying] on the absence of objective physical symptoms 12 of severe pain as a basis for disbelieving [claimant’s] testimony regarding” effects of 13 fibromyalgia symptoms). 14 Second, the ALJ discounted the subjective complaints by incorrectly 15 characterizing the treatment history as “limited and conservative.” (T at 650). “The 16 fact that treatment may be routine or conservative is not a basis for finding 17 subjective symptom testimony unreliable absent discussion of the additional, more 18 3 19 20  Typically, an individual with at least 11 trigger points is considered likely to be suffering from fibromyalgia.   15 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 aggressive treatment options the ALJ believes are available.” Slover v. Comm'r of 2 Soc. Sec. Admin., No. CV-10-258-HZ, 2011 U.S. Dist. LEXIS 36459, 2011 WL 3 1299615, at * 4 (D. Or. Apr. 4, 2011); see also Gentry v. Colvin, 2013 U.S. Dist. 4 LEXIS 168342 (E.D. Cal. 2013). 5 Moreover, Claimant underwent bilateral knee arthroscopies (T at 650), had an 6 L4-5 epidurogram, received cortisone injections (T at 648), and was prescribed 7 powerful narcotics. (T at 552). This cannot reasonably be characterized as “limited” 8 or “conservative” treatment. See Harvey v. Colvin, 2014 U.S. Dist. LEXIS 107607, 9 at *28 (C.D. Cal. Aug. 5, 2014)(finding that ALJ erred in discounting credibility 10 based on “conservative” treatment where treatment including injections); Yang v. 11 Barnhart, 2006 U.S. Dist. LEXIS 90358, at *12-14 (C.D. Cal. Dec. 12, 12 2006)(concluding that physical therapy, neck surgery, prescription medication, and 13 epidural injections were not “conservative” treatment sufficient to discount 14 claimant’s credibility). 15 Third, the ALJ failed to adequately account for the “wax and wane” of 16 symptoms. For example, the ALJ noted that Claimant “achieved excellent headache 17 relieve [sic] with medication, with notes for January 2012 through March 2012 18 indicating she was not experiencing any headaches.” (T at 646). Although this 19 correctly describes a brief period of progress, it is of limited relevance because 20 16 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 subsequent treatment notes consistently described Claimant as suffering from 2 migraines (T at 852, 861, 870, 880, 886) and she was treated in the emergency room 3 for an overwhelming migraine on at least one occasion. (T at 858). 4 Lastly, the ALJ overstated Claimant’s activities of daily living when 5 discounting her credibility. 6 February of 2013, Claimant could do laundry, attend to her basic needs, and engage 7 in interpersonal relationships with family members, she also described Claimant as 8 depressed, experiencing mood swings, and needing encouragement to leave her bed. 9 (T at 232). As discussed above, Plaintiff testified to very significant limitation in 10 Although Claimant’s daughter reported that, as of Claimant’s activities of daily living prior to her death. (T at 710-14). 11 The Ninth Circuit “has repeatedly asserted that the mere fact that a plaintiff 12 has carried on certain daily activities ... does not in any way detract from her 13 credibility as to her overall disability." Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 14 2007) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). “The 15 Social Security Act does not require that claimants be utterly incapacitated to be 16 eligible for benefits, and many home activities are not easily transferable to what 17 may be the more grueling environment of the workplace, where it might be 18 impossible to periodically rest or take medication.” Fair v. Bowen, 885 F.2d 597, 19 603 (9th Cir. 1989). 20 17 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 Recognizing that “disability claimants should not be penalized for attempting 2 to lead normal lives in the face of their limitations,” the Ninth Circuit has held that 3 “[o]nly if [her] level of activity were inconsistent with [a claimant’s] claimed 4 limitations would these activities have any bearing on [her] credibility.” Reddick v. 5 Chater, 157 F.3d 715, 722 (9th Cir. 1998)(citations omitted); see also Bjornson v. 6 Astrue, 671 F.3d 640, 647 (7th Cir. 2012)(“The critical differences between 7 activities of daily living and activities in a full-time job are that a person has more 8 flexibility in scheduling the former than the latter, can get help from other persons . . 9 ., and is not held to a minimum standard of performance, as she would be by an 10 employer. The failure to recognize these differences is a recurrent, and deplorable, 11 feature of opinions by administrative law judges in social security disability 12 cases.”)(cited with approval in Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 13 2014)). 14 In light of the foregoing, this Court finds that the ALJ’s credibility 15 determination is not supported by substantial evidence and cannot be sustained. 16 C. Step Two Analysis –Mental Impairment 17 At step two of the sequential evaluation process, the ALJ must determine 18 whether the claimant has a “severe” impairment. See 20 C.F.R. §§ 404.1520(c), 19 416.920(c). The fact that a claimant has been diagnosed with and treated for a 20 18 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 medically determinable impairment does not necessarily mean the impairment is 2 “severe,” as defined by the Social Security Regulations. See, e.g., Fair v. Bowen, 3 885 F.2d 597, 603 (9th Cir. 1989); Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 4 1985). To establish severity, the evidence must show the diagnosed impairment 5 significantly limits a claimant's physical or mental ability to do basic work activities 6 for at least 12 consecutive months. 20 C.F.R. § 416.920(c). 7 The step two analysis is a screening device designed to dispose of de minimis 8 complaints. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “[A]n impairment 9 is found not severe . . . when medical evidence establishes only a slight abnormality 10 or a combination of slight abnormalities which would have no more than a minimal 11 effect on an individual’s ability to work.” Yuckert v. Bowen, 841 F.2d 303 (9th Cir. 12 1988) (quoting SSR 85-28). 13 The claimant bears the burden of proof at this stage and the “severity 14 requirement cannot be satisfied when medical evidence shows that the person has 15 the ability to perform basic work activities, as required in most jobs.” SSR 85-28. 16 Basic work activities include: “walking, standing, sitting, lifting, pushing, pulling, 17 reaching, carrying, or handling; seeing, hearing, speaking; understanding, carrying 18 out and remembering simple instructions; responding appropriately to supervision, 19 coworkers, and usual work situations.” Id. 20 19 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 When evaluating the severity of mental impairments, the regulations require 2 the ALJ to apply a “special technique” at the second and third steps of the review, in 3 addition to the customary sequential analysis. 4 technique first requires a determination of whether the claimant has a medically 5 determinable mental impairment. 20 C.F.R. § 404.1520a(b)(1). 20 C.F.R. § 404.1520a. The 6 Then, the ALJ must rate the degree of the claimant’s functional limitation 7 resulting from the impairment in four areas: (1) activities of daily living; (2) social 8 functioning; (3) concentration, persistence, or pace; and (4) episodes of 9 decompensation. See 20 C.F.R § 404.1520a(c)(3). These areas are rated on a scale of 10 “none, mild, moderate, marked, and extreme.” 20 C.F.R. §§ 404.1520a(c)(4); 11 416.920a(c)(4). A mental impairment is generally found not severe if the degree of 12 limitation in the first three areas is mild or better and there are no episodes of 13 decompensation. 20 C.F.R. § 404.1520a(d)(1). The ALJ must “document a specific 14 finding as to the degree of limitation in each of the functional areas.” 20 C.F.R. § 15 404.1520a(e)(2). 16 In the present case, the ALJ concluded that Claimant did not have a severe 17 mental impairment. (T at 644). However, the ALJ did not provide any explanation 18 for this finding and it is not clear that the ALJ employed the special technique. This 19 was a significant omission as the record documents depressive symptoms and 20 20 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 treatment by Claimant’s primary care providers. (T at 536, 540-46, 838-39). As 2 discussed above, both Plaintiff and Claimant’s daughter testified to significant 3 mental health issues and the limiting effect those symptoms had on Claimant’s 4 activities. 5 The Commissioner argues the ALJ’s error was harmless based on the 6 assessments of Dr. Elmo Lee, a consultative psychiatric examiner, and Dr. B. 7 Pearce, a non-examining State Agency review consultant. 8 treating physicians assessed mild psychiatric problems with minimal to no limitation 9 in basic work activities (T at 320-21, 343, 646, 650). Both of these non- 10 However, given the evidence of record indicating significant limitations, 11 treating for depression and anxiety administered by treating providers, and the lack 12 of mental health related limitations contained in the ALJ’s RFC determination, this 13 Court cannot find the ALJ’s failure to conduct a proper assessment of Claimant’s 14 mental health impairment to be harmless error. See Alegria v. Colvin, No. CV 14- 15 6573, 2015 WL 1893114, 2015 U.S. Dist. LEXIS 54865, at *3 (C.D. Cal. Apr. 27, 16 2015)(“An ALJ’s failure to apply the psychiatric review technique is not harmless 17 error if the claimant has a ‘colorable claim of mental impairment.’”)(quoting Keyser 18 v. Comm’r of Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011)). 19 20 21 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 D. Medical Opinion Evidence 2 In disability proceedings, a treating physician’s opinion carries more weight 3 than an examining physician’s opinion, and an examining physician’s opinion is 4 given more weight than that of a non-examining physician. Benecke v. Barnhart, 5 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 6 1995). If the treating or examining physician’s opinions are not contradicted, they 7 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 8 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 9 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 10 1035, 1043 (9th Cir. 1995). Historically, the courts have recognized conflicting 11 medical evidence, and/or the absence of regular medical treatment during the alleged 12 period of disability, and/or the lack of medical support for doctors’ reports based 13 substantially on a claimant’s subjective complaints of pain, as specific, legitimate 14 reasons for disregarding a treating or examining physician’s opinion. Flaten v. 15 Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 16 An ALJ satisfies the “substantial evidence” requirement by “setting out a 17 detailed and thorough summary of the facts and conflicting clinical evidence, stating 18 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 19 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 20 22 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB In February of 2013, Dr. Raymond Menchaca completed a physical residual 1 2 functional capacity assessment. At that time, Dr. Menchaca had been treating 3 Claimant about every 2 months for 5 years. Although Dr. Menchaca described 4 Plaintiff’s prognosis as “good” and opined that Plaintiff’s limitations were not 5 expected to last at least 12 months, he assessed limitations inconsistent with even 6 sedentary work and opined that Plaintiff could not tolerate anything more than a low 7 stress job. (T at 535-38). The ALJ referenced Dr. Menchaca’s opinion, but failed to 8 explain what weight, if any, she gave the assessment when making the RFC 9 determination. 10 In addition, the ALJ dismissed the March 2013 and May 2013 reports of Dale 11 Davis, a treating physician’s assistant, who assessed significant physical and mental 12 limitations arising from Claimant’s impairments. (T at 540-46, 547-51). Although 13 Mr. Davis may not have been an “acceptable medical source,”4 the ALJ was obliged 14 to provide “germane reasons” before discounting his opinion – and simply citing his 15 status as a physician’s assistant is not sufficient. See Dodrill v. Shalala, 12 F.3d 915, 16 919 (9th Cir. 1993). Moreover, there is some indication Mr. Davis was working 17 4 18 19 20 Medical sources are divided into two categories: “acceptable’ and “not acceptable.” 20 C.F.R. § 404.1502. Acceptable medical sources include licensed physicians and psychologists. 20 C.F.R. § 404.1502. Medical sources classified as “not acceptable” include, but are not limited to, physician assistants, nurse practitioners, therapists, licensed clinical social workers, and chiropractors. SSR 06-03p. 23 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 under Dr. Kiker, one of Claimant’s treating physicians. If so, his assessments would 2 have been entitled to greater weight. See, e.g., Gomez v. Chater, 74 F.3d 967, 971 3 (9th Cir. 1996)(holding that nurse practitioner should be considered an acceptable 4 medical source where she “worked closely under the supervision of [the physician] 5 and . . . was acting as an agent of [the physician].”). The ALJ erred by dismissing 6 Mr. Davis’s opinions without exploring this further. 7 E. Remand 8 In a case where the ALJ's determination is not supported by substantial 9 evidence or is tainted by legal error, the court may remand for additional 10 proceedings or an immediate award of benefits. Remand for additional proceedings 11 is proper where (1) outstanding issues must be resolved, and (2) it is not clear from 12 the record before the court that a claimant is disabled. See Benecke v. Barnhart, 379 13 F.3d 587, 593 (9th Cir. 2004). 14 In contrast, an award of benefits may be directed where the record has been 15 fully developed and where further administrative proceedings would serve no useful 16 purpose. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). 17 remanded for an award of benefits where (1) the ALJ has failed to provide legally 18 sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that 19 must be resolved before a determination of disability can be made, and (3) it is clear 20 24 Courts have DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 from the record that the ALJ would be required to find the claimant disabled were 2 such evidence credited. Id. (citing Rodriguez v. Bowen, 876 F.2d 759, 763 (9th 3 Cir.1989); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989); Varney v. Sec'y of 4 Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir.1988)). 5 This Court is mindful that this matter was already remanded once to afford the 6 Commissioner a second opportunity to make a proper assessment of Claimant’s 7 credibility and the medical evidence. The ALJ failed to perform either task, as set 8 forth above. 9 including assessments from treating providers, contemporaneous treatment notes, 10 and the testimony of Claimant and Plaintiff, if credited, makes it clear that Claimant 11 was disabled within the meaning of the Social Security Act. There are no outstanding issues to be resolved. The evidence, 12 The Commissioner argues in conclusory fashion that a remand for further 13 proceedings would be the appropriate remedy if this Court were to find the ALJ’s 14 decision not supported by substantial evidence. 15 purpose yet another remand would serve in this case. The Ninth Circuit has held it 16 is not appropriate to “remand for the purpose of allowing the ALJ to have a 17 mulligan.” Garrison v. Colvin, 759 F.3d 995, 1012, 1021 (9th Cir. 2014). Indeed, 18 “[a]llowing the Commissioner to decide the issue again would create an unfair However, it is not clear what 19 20 25 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB 1 ‘heads we win; tails, let's play again’ system of disability benefits adjudication.” 2 Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 3 4 5 6 V. ORDERS IT IS THEREFORE ORDERED that: 7 Judgment be entered REVERSING the Commissioner’s decision and 8 REMANDING this action for calculation of benefits, and it is further ORDERED 9 that 10 The Clerk of the Court shall file this Decision and Order, serve copies upon 11 counsel for the parties, and CLOSE this case without prejudice to a timely 12 application for attorneys’ fees and costs. 13 DATED this 9th day of April 2018, 14 15 16 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 17 18 19 20 26 DECISION AND ORDER – LEON v BERRYHILL 2:16-CV-07204-VEB

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?