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)
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
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3
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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.
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II.
10
THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS
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To
demonstrate
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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)).
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24
qualify
\\
\\
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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.
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9
(2)
10
Is the claimant’s impairment severe?
claimant is found not disabled.
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If not, the
If so, proceed
to step three.
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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.
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(4)
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Is the claimant capable of performing his past
work?
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If so, the claimant is found not disabled.
If not, proceed to step five.
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(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
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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).
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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)).
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27
Additionally, the ALJ has an
III.
1
THE ALJ’S DECISION
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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).
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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).
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The ALJ then found that Plaintiff had the following residual
functioning capacity (“RFC”):
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[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.
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3
4
5
(AR 37).
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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).
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IV.
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STANDARD OF REVIEW
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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
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5
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7
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9
10
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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)).
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V.
16
DISCUSSION
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A. The ALJ Failed To Provide Specific And Legitimate Reasons
For Rejecting Dr. Fierro’s Opinion
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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.
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When
a
treating
or
examining
physician's
opinion
is
not
contradicted by another physician, it may be rejected only for
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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).
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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).
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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.).
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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.
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Fierro did not seek to hospitalize Plaintiff or make a referral
28
to “an actual psychiatrist”; (3) Dr. Fierro’s assessments suggest
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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).
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1. Dr. Fierro’s Records
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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.).
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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.
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Additionally,
while
Dr.
Fierro
does
not
appear
to
have
conducted significant diagnostic testing, his opinion does not
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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).
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2. Hospitalization
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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.
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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
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5
6
7
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9
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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).
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On remand, the ALJ should develop the record to address any
ambiguity in the medical evidence.
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3. Daily Activities
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27
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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
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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.”).
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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.
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4. No Medication For Psychotic Symptoms
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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).
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22
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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 http://www.psychology.ca.gov/consumers/medicate.shtml.
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.
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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
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12
13
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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
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3
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5
6
7
8
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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.
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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.).
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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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