Armando Barrera Aguilar v. Carolyn W. Colvin

Filing 23

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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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ARMANDO BARRERA AGUILAR, No. CV 16-7565 SS Plaintiff, v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL,1 Acting Commissioner of the Social Security Administration, Defendant. I. INTRODUCTION Armando Barrera Aguilar (“Plaintiff”) seeks review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner” or the “Agency”) denying his application for Disability Insurance Benefits (“DIB”) and 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 2 3 4 5 6 Supplemental Security Income (“SSI”). pursuant to 28 U.S.C. § 636(c), to The parties consented, the jurisdiction undersigned United States Magistrate Judge. of the (Dkt. Nos. 11-12). For the reasons stated below, the decision of the Commissioner is REVERSED and this case is REMANDED for further administrative proceedings consistent with this decision. 7 8 9 II. 10 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 11 12 13 14 15 16 17 18 19 20 21 22 To demonstrate 25 26 27 28 a for disability medically benefits, determinable a claimant physical or must mental impairment that prevents him from engaging in substantial gainful activity and that is expected to result in death or to last for a continuous period of at least twelve months. 157 F.3d 715, § 423(d)(1)(A)). incapable of 721 The performing (9th Cir. 1998) impairment the work must he Reddick v. Chater, (citing render previously 42 the U.S.C. claimant performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 23 24 qualify \\ \\ 1 2 3 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 4 5 (1) 6 Is the claimant presently engaged in substantial gainful activity? 7 not disabled. If so, the claimant is found If not, proceed to step two. 8 9 (2) 10 Is the claimant’s impairment severe? claimant is found not disabled. 11 If not, the If so, proceed to step three. 12 13 (3) 14 Does the claimant’s impairment meet or equal one of 15 the specific impairments described C.F.R. Part 404, Subpart P, Appendix 1? 16 the claimant is found disabled. 17 in 20 If so, If not, proceed to step four. 18 19 (4) 20 Is the claimant capable of performing his past work? 21 If so, the claimant is found not disabled. If not, proceed to step five. 22 23 24 25 26 27 28 (5) Is the claimant able to do any other work? not, the claimant is found disabled. claimant is found not disabled. If If so, the 1 2 3 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54. affirmative duty to assist the claimant in developing the record at every step of the inquiry. Id. at 954. 28 If, at step four, the claimant meets his burden of establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other work that exists in “significant numbers” in the national economy, taking into account the claimant’s residual functional capacity (“RFC”), age, education, and work experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). The Commissioner may do so by the testimony of a vocational expert or by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as “the Grids”). v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). has both exertional (strength-related) and Osenbrock When a claimant non-exertional limitations, the Grids are inapplicable and the ALJ must take the testimony of a vocational expert. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). 26 27 Additionally, the ALJ has an III. 1 THE ALJ’S DECISION 2 3 4 5 6 7 8 9 10 11 12 13 14 15 The ALJ employed the five-step sequential evaluation process in evaluating Plaintiff’s case. At step one, the ALJ found that Plaintiff met the insured status requirements of the Act through June 30, activity 2011, since and had October not 30, engaged 2008, in his substantial alleged (Certified Administrative Record (“AR”) 31). onset gainful date. At step two, the ALJ found that Plaintiff had the following severe impairments: a history of musculoligamentous strain of the lumbar spine, mild to moderate lumbosacral disc disease, mild degenerative disc disease of the cervical spine, mild degenerative disc disease of the thoracic spine, a history of right inguinal hernia, status post hernia repair, depressive otherwise specified. disorder and anxiety disorder, not (AR 32). 16 17 18 19 20 At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 36). 21 22 23 The ALJ then found that Plaintiff had the following residual functioning capacity (“RFC”): 24 25 26 27 28 [Plaintiff] can lift and/or carry fifty pounds occasionally, twenty-five pounds frequently, stand and/or walk six hours and sit six hours in an eight-hour workday. [Plaintiff] can frequently climb ramps, stairs, ladders, ropes and scaffolds, balance, stoop, kneel, crouch and crawl. [Plaintiff] is limited to the performance of simple repetitive tasks. [Plaintiff] can 1 have occasional supervision and he can occasionally accept instructions and/or criticism from supervisors. He can have occasional contact with coworkers and incidental contact with the public. [Plaintiff] can have occasional changes to a routine work setting. 2 3 4 5 (AR 37). 6 7 At step four, the ALJ determined that Plaintiff is unable to 8 perform any past relevant work. 9 found that, considering (AR 42). Plaintiff’s At step five, the ALJ age, education, work 10 experience, and RFC, there are jobs that exist in significant 11 numbers in the national economy that the Plaintiff can perform. 12 (AR 43). 13 14 IV. 15 STANDARD OF REVIEW 16 17 Under 42 U.S.C. § 405(g), a district court may review the 18 Commissioner’s decision to deny benefits. 19 aside the Commissioner’s decision when the ALJ’s findings are 20 based 21 evidence” in the record as a whole. 22 F.3d 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 23 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) 24 (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). on legal error or are not The court may set supported by “substantial Aukland v. Massanari, 257 25 26 “Substantial evidence is more than a scintilla, but less 27 than a preponderance.” 28 v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). Reddick, 157 F.3d at 720 (citing Jamerson It is “relevant 1 2 3 4 5 6 7 8 9 10 11 12 evidence which a reasonable person might accept as adequate to support a conclusion.” Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). To determine whether substantial evidence supports a finding, the court must “‘consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). affirming If or the evidence reversing that can reasonably conclusion, the support court substitute its judgment for that of the Commissioner. either may not Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). 13 14 15 V. 16 DISCUSSION 17 18 19 A. The ALJ Failed To Provide Specific And Legitimate Reasons For Rejecting Dr. Fierro’s Opinion 20 21 22 23 24 Plaintiff contends that the ALJ failed to give reasons supported by substantial evidence for rejecting the opinion of Plaintiff’s treating psychologist, Dr. Arturo Fierro, Ph.D. MSO at 4). (Pl. The Court agrees. 25 26 27 28 When a treating or examining physician's opinion is not contradicted by another physician, it may be rejected only for 1 2 3 4 5 6 7 8 9 10 “clear and convincing” reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). When a treating or examining physician's opinion is contradicted by another doctor, as is the case here, it may only legitimate” record. be rejected reasons if the supported by ALJ provides substantial “specific evidence in and the Id. at 830–31; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). The ALJ can meet this burden by setting forth a detailed and thorough summary of the facts and conflicting clinical evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 11 12 13 Dr. Fierro is a Ph.D. licensed clinical psychologist who 14 treated Plaintiff weekly beginning in April of 2014. 15 On March 15, 2016, Dr. Fierro listed his diagnostic impression of 16 Plaintiff as: (1) Major Depressive Disorder severe with Psychotic 17 Features, 18 (AR 1120). 19 maintain stability both as so far as medications and psychiatric 20 treatment this patient does not appear able to return to more 21 gainful 22 functional impairments now appear chronically disabling.” Recurrent; and and (2) Schizotype Personality (AR 1117). Disorder. He noted that “[d]espite [Plaintiff’s] efforts to stable living. His psychiatric and physical (Id.). 23 24 The ALJ gave little weight to Dr. Fierro’s opinion after 25 determining that: (1) Dr. Fierro’s opinion was not supported by 26 his own records; (2) despite the severity of the evaluations, Dr. 27 Fierro did not seek to hospitalize Plaintiff or make a referral 28 to “an actual psychiatrist”; (3) Dr. Fierro’s assessments suggest 1 2 3 4 5 greater limitations than Plaintiff alleges and is contradicted by Plaintiff’s daily activities; and (4) while Dr. Fierro offered the impression of psychotic features and schizotype personality disorder, there is no evidence that the Plaintiff was prescribed medication for psychotic symptoms. (AR 39-40). 6 7 1. Dr. Fierro’s Records 8 9 10 11 12 13 The ALJ argues that Dr. Fierro’s opinion is not supported by his own records. (AR 39). The ALJ further argues that the progress notes, specifically those regarding Plaintiff’s current level of functioning, “appear primarily to be reiterations of the claimant’s complaints.” (Id.). 14 15 16 17 18 19 20 21 22 23 24 The ALJ improperly rejected Dr. Fierro’s opinion. First, the ALJ found that Dr. Fierro’s progress notes are inconsistent because they “indicate a waxing and waning.” (AR 41). also notes that medical records experienced “ups and downs.” indicate (AR 39). that The ALJ Plaintiff However, “waxing” and “waning” do not necessarily contradict the existence of extreme mental limitations. Experiencing some “ups” and “fair days” does not preclude the possibility of such mental limitations, either. Therefore, these do not constitute specific and legitimate reasons for rejecting Dr. Fierro’s opinion. 25 26 27 28 Additionally, while Dr. Fierro does not appear to have conducted significant diagnostic testing, his opinion does not 1 2 3 4 5 6 7 8 9 seem to rely exclusively on Plaintiff's subjective symptoms. For example, Dr. Fierro’s April 23, 2014 assessment includes clinical observations regarding Plaintiff’s appearance, attitude, psychomotor activity, speech, mood and affect, among others. 1051). (AR Likewise, his March 2016 report states that Plaintiff’s “intellectual functioning and sensorium was established through the mental status examination, which displays episodes of poor memory and memory deficits for recent and remote recall, and poor concentration.” (AR 1118). 10 11 2. Hospitalization 12 13 14 15 16 17 18 19 20 The ALJ rejects Dr. Fierro’s opinion because, despite the severity indicated in his evaluations, Dr. Fierro did not seek to hospitalize Plaintiff psychiatrist”. Plaintiff’s (AR symptoms or make 39). is a First, not referral Dr. to Fierro’s inconsistent an “actual assessment with a lack of of hospitalizations. Not every individual with debilitating mental illness hospitalizations, requires nor are hospitalizations appropriate in all instances. 21 22 23 24 25 26 27 28 Second, Dr. Fierro’s decision not to refer Plaintiff to an “actual psychiatrist” does not justify rejecting his professional opinion without knowing and evaluating his reasons. The ALJ’s rejection of Dr. Fierro’s opinion on this basis is improper. See Smolen, 80 F.3d at 1288 (“If the ALJ thought he needed to know the basis of [a doctor’s] opinions in order to evaluate them, he 1 2 3 4 5 6 7 8 9 10 11 12 had a duty to conduct an appropriate inquiry, for example, by supoenaing them” or the physicians by or submitting “continuing the further hearing to questions augment to the record”)(citation omitted); see also Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)(the ALJ’s duty to develop the record is triggered when there is “ambiguous evidence” or when “the record is inadequate to allow for proper evaluation of the evidence”); Brown v. Heckler, 713 F.2d 441, 441 (9th Cir. 1983)(“In Social Security cases the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant’s interests are considered[,]” even when the claimant is represented by counsel). 13 14 15 On remand, the ALJ should develop the record to address any ambiguity in the medical evidence. 16 17 3. Daily Activities 18 19 20 21 22 23 24 25 26 27 28 The ALJ contends that Dr. Fierro’s assessments suggest greater limitations than Plaintiff alleges and are contradicted by Plaintiff’s daily activities. (AR 40). Plaintiff contends that the “fact that [Plaintiff] can take public transportation; goes to eat; takes care of his personal needs – does not mean that Dr. Fierro’s opinion is inconsistent.” Court agrees. (Pl. MSO at 8). The 1 2 3 4 5 6 7 8 9 10 Evidence regarding Plaintiff’s daily activities does not contradict Dr. Fierro’s opinion that he has “extreme” limitations in most areas of mental functioning. A plaintiff does not need to be completely incapacitated to be disabled. Fair, 885 F.2d at 603; (9th Cooper v. Bowen, 815 F.2d 557, 561 Cir. 1987) (“Disability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity.”) (citation and quotations omitted); Reddick, 157 F.3d at 722 (“disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations.”). 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Instead, a plaintiff’s daily activities are inconsistent with claimed disability where the plaintiff is able to spend a substantial part of the day engaged transferable to a work setting. the record does not show in activities that Fair, 885 F.2d at 603. that activities meet this requirement. Plaintiff’s are Here, limited daily The ALJ identified the fact that Plaintiff goes to church, feels hopeful due to spiritual support, is able to take public transportation, is able to care for personal needs, eats at fast food restaurants, goes to the park, and drives a motor vehicle as evidence contradicting Dr. Fierro’s These opinion activities limitations. of are “extreme” not mental limitations. inconsistent with (AR extreme 40). mental Moreover, these activities do not demonstrate that Plaintiff is able to spend a substantial part of his day engaged in activities that are transferrable to a work setting. 1 2 3 4 5 6 7 The ALJ therefore improperly relied upon Plaintiff’s daily activities as a basis for rejecting Dr. Fierro’s opinion. Gallant v. Heckler, 753 F.2d 1450, 1453-55 (9th Cir. See 1984) (“Gallant”) (fact that claimant could cook for himself and family members as well as wash dishes did not preclude a finding that claimant was disabled due to constant back and leg pain). Remand is required. 8 9 4. No Medication For Psychotic Symptoms 10 11 12 13 14 15 16 The ALJ stated that, while Dr. Fierro offered the impression of psychotic features and schizotype personality disorder, there is no evidence that Plaintiff is prescribed medication for these symptoms. (AR 40). Plaintiff contends that the ALJ found that because Dr. Fierro did not prescribe medication, Dr. Fierro’s opinion lacks substantial evidence. (Pl. MSO at 8). 17 18 19 20 21 22 23 24 25 As a licensed psychologist, Dr. Fierro is likely unable to prescribe any medications to Plaintiff.2 However, Dr. Fierro is still a specialist, and the Social Security Agency gives more “weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.” 20 C.F.R. § 404.1527(c)(5). While Plaintiff’s primary care physicians opted to prescribe Zoloft and Elavil to Plaintiff, Dr. Fierro, as a psychologist, 26 27 28 California psychologists cannot legally prescribe medication. See 2 1 2 3 4 5 was not permitted to prescribe medication. could not direct Plaintiff. them Thus, to Dr. prescribe Fierro could Moreover, Dr. Fierro certain not medications prescribe to medication himself and did not have control over what other doctors chose to prescribe. Again, remand is required. 6 7 8 B. The ALJ Failed To Properly Consider The Examiner’s Limitations When Creating The RFC Consultative 9 “A claimant's residual functional capacity is what he can 10 11 12 13 14 15 16 17 18 19 20 21 22 still do despite his physical, mental, nonexertional, and other limitations.” Cooper v. Sullivan, 880 F.2d 1152, 1155 n. 5 (9th Cir. 1989) (citing 20 C.F.R. § 404.1545). An RFC assessment requires the ALJ to consider a claimant's impairments and any related symptoms that may “cause physical and mental limitations that affect what [he] can do in a work setting.” 20 C.F.R. §§ 404.1545(a)(1), 416. 945(a)(1). the ALJ considers all In determining a claimant's RFC, relevant evidence, including residual functional capacity assessments made by consultative examiners, State Agency physicians 404.1545(a)(3), 416. and medical 945(a)(3). See experts. also 20 20 C.F.R. C.F.R. §§ §§ 404.1513(c), 416. 913(c). 23 24 Following a December 2, 2013 examination of Plaintiff, 25 consultative examining psychiatrist Dr. Rama Nadella opined on a 26 series 27 finding, the ALJ stated that he gave “greatest weight to the 28 opinion of the State Agency medical consultants and the reviewing of limitations. (AR 841-845). In issuing his RFC 1 2 3 4 5 6 7 8 9 10 psychologist [], to find that the claimant is limited to the range of unskilled work described in [the RFC]. Inasmuch as Dr. Nadella’s opinion is consistent with those of the State Agency medical consultants, I give it limited weight.” (AR 39). The ALJ included four limitations similar to those proposed by Dr. Nadella. However, limitations performing ability he stating work to did that with include Plaintiff activities deal not on the a two is Dr. moderately consistent usual of basis stressors Nadella’s limited and in in the encountered in competitive work. 11 12 Plaintiff contends that the ALJ never assessed any weight to 13 14 Dr. Nadella’s opinion. 15 it 16 Nadella’s opinion by the “similarities of Dr. Nadella’s opinion 17 to 18 But, 19 Nadella’s proposed limitations in the RFC. 20 Therefore, 21 requirement that he review the record as a whole. can the be inferred ALJ’s (Pl. MSO at 11). that assessed Plaintiff argues, Plaintiff the ALJ residual the claims, ALJ Plaintiff argues that gave great weight functional capacity.” failed assess the ALJ to two to Dr. (Id.). of Dr. (Pl. MSO at 12). failed to fulfill the (Id.). 22 23 24 25 26 27 28 Defendant counters that the ALJ did assess weight to Dr. Nadella’s opinion. Specifically, the ALJ assigned Dr. Nadella’s opinion “limited weight” before moving forward in determining an appropriate RFC. (Def. MSO at 9). Defendant also argues that 1 2 the ALJ “properly reviewed the record as a whole and articulated a concrete RFC”. (Id.). 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 The ALJ excluded two of Dr. Nadella’s proposed limitations. Accordingly, the ALJ legitimate reasons, implicitly rejecting erred by supported portions not by of providing specific and evidence, for opinion. See substantial Dr. Nadella’s Jackson v. Colvin, 2014 WL 562240, at *2 (C.D. Cal. Feb. 11, 2014) (finding ALJ erred in failing to explain why RFC assessment did not adopt certain moderate limitations opined by the consultative examining psychiatrist); Jackson v. Colvin, 2013 WL 1873148, at *5 (C.D. Cal. May 2, 2013) (finding ALJ erred in failing to proffer any reason for not explaining the rejection of consultative psychiatrist's opinion that claimant would have mild to moderate limitations with respect to handling normal stresses at work); see also SSR 85-15, 1985 WL 56857, at *5-6 (Jan. 1, 1985) (emphasizing that mentally impaired people often “have difficulty accommodating to the demands of work and work-like settings” and thus “[a]ny impairment-related limitations created by an individual's response to demands of work ... must be reflected in the RFC assessment”). 22 23 24 On remand, the ALJ must properly assess Dr. Nadella’s 25 opinion and provide specific and legitimate reasons for rejecting 26 any portion of that opinion. 27 28 1 VI. 2 CONCLUSION 3 4 5 6 7 8 Accordingly, IT IS ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. 9 10 DATED: August 1, 2017 11 12 13 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIS DECISION IS NOT INTENDED FOR LEXIS/NEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. PUBLICATION IN

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