Zaman Kabeer Shirazi v. Carolyn W. Colvin

Filing 26

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is REMANDED. (See Order for complete details) (afe)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 11 12 ) No. CV 16-08037-AS ) ) MEMORANDUM OPINION AND ORDER OF ) ) REMAND ) ) ) ) ) ) ) ZAMAN KABEER SHIRAZI, 13 Plaintiff, v. 14 15 16 NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, Defendant. 17 18 PROCEEDINGS 19 20 21 On October 28, 2016, Zaman Kabeer Shirazi (“Plaintiff”) filed a 22 Complaint seeking review of the Commissioner’s denial of Plaintiff’s 23 application for Supplemental Security Income (“SSI”). 24 No. 25 Complaint and the Certified Administrative Record (“AR”). 26 Entry Nos. 23-24). 27 28 1). 1 On March 27, 2017, Defendant filed an (Docket Entry Answer to the (Docket The parties have consented to proceed before a Nancy A. Berryhill is now the Acting Commissioner of Social Security and is substituted for Acting Commissioner Carolyn W. Colvin in this case. See 42 U.S.C. § 205(g). 1 1 United States Magistrate Judge. 2 June 19, 2017, the parties filed a Joint Stipulation (“Joint Stip.”) 3 setting forth their respective positions on Plaintiff’s sole claim. 4 (Docket Entry No. 25). (Docket Entry Nos. 17, 18). On 5 6 SUMMARY OF ADMINISTRATIVE DECISION 7 8 On October 3, 2013, an application for SSI was filed on behalf 9 of Plaintiff, a child under age 18,2 alleging disability beginning on 10 June 19, 2013. (AR 161-70). On March 19, 2015, the ALJ examined 11 the record and heard testimony from Plaintiff’s father. 12 On April 16, 2015, the ALJ denied Plaintiff benefits in a written 13 decision. (AR 35-47). (AR 11-27). 14 15 The ALJ applied the three-step sequential evaluation in 16 determining whether Plaintiff, as an individual under the age of 18, 17 was disabled. 18 whether the Plaintiff has engaged in substantial gainful activity 19 since the date of application; at step two the ALJ must determine 20 whether Plaintiff had a medically determinable severe impairment or 21 combination 22 determine 23 impairments 24 Listing, or that functionally equals a Listing. 25 416.924. 26 engaged in substantial gainful activity after the alleged onset date 27 28 2 of (AR 12-16). severe whether that At step one the ALJ must determine impairments; Plaintiff had meets medically or an at step three impairment equals or the the ALJ must combination severity of of a See 20 C.F.R. § At step one, the ALJ determined that Plaintiff had not Plaintiff was sixteen years old in October 2013 when the application was filed and seventeen years old at the time the decision was issued. 2 1 of October 3, 2013. (AR 14). At step two, the ALJ found that 2 Plaintiff following impairments: 3 hyperactivity disorder, depression, spina bifida and was overweight. 4 (AR 5 impairments or combination of impairments did not meet, medically 6 equal or functionally equal the severity of a Listed Impairment as 7 found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 8 This determination was based on the ALJ’s finding that Plaintiff did 9 not have a marked or extreme limitation in any of the applicable six had 14). At the step three, the ALJ attention determined that deficit Plaintiff’s (AR 14-26). 10 functional domains. 11 (1) moderate or less than marked limitation in acquiring and using 12 information; 13 attending and completing tasks; (3) mild to moderate or less than 14 marked limitation in interacting and relating with others; (4) no 15 limitation in moving and manipulating objects; (5) mild or less than 16 marked limitation in the ability to care for himself; and (6) mild 17 or less than marked limitation in health and physical well-being. 18 (AR 20-26). 19 been disabled, as defined in the Social Security Act, since October 20 3, 2013, the application date. (2) Specifically, the ALJ found that Plaintiff had moderate or less than marked limitation in Accordingly, the ALJ concluded that Plaintiff had not (AR 27). 21 22 The ALJ noted that Plaintiff had regularly been seeing his 23 treating psychiatrist, Elsa Cruz, M.D., from June 2013 through 2015. 24 (See AR 303-19, 322-28, 406-15, 453-58, 467-71, 525-533). 25 initial 26 Plaintiff had difficulty concentrating and poor focus and diagnosed 27 him 28 Hyperactivity Disorder (“ADHD”). assessment with Major dated June Depressive 25, 2013, Disorder Dr. and (AR 303-11). 3 Cruz During an found Attention that Deficit In a letter dated 1 March 2 improvement with medications,” “his overall clinical presentation 3 demonstrate[d] 4 focus, and concentration,” (AR 533) and opined that Plaintiff had 5 “marked and severe limitations in his ability to acquire and use 6 information and in attending and completing tasks.” 7 rejected this opinion finding it to be inconsistent with Dr. Cruz’s 8 own treatment notes.3 11, 2015, Dr. Cruz found significant that problems in while the Plaintiff area of had “some inattention, (Id.). The ALJ (See AR 15-18). 9 10 In determining the severity of Plaintiff’s limitations, the ALJ 11 gave substantial weight to the opinion of Ashak Khushalani, M.D., an 12 impartial medical expert. 13 dated January 1, 2015, Dr. Khushalani found Plaintiff had (1) a 14 severe limitation in the ability to do complex cognitive activity; 15 (2) a mild limitation in responding appropriately to supervision and 16 authority and in responding appropriately to others; and (3) no 17 limitation 18 carrying 19 decisions, responding to usual situations and handling changes in 20 routine 21 Khushalani 22 involving occasional contact with the general public[.]” in out daily (AR 18). understanding simple activity found simple In response to an interrogatory instructions, instructions, settings. Plaintiff making (AR “capable remembering simple 516-24). of handling age related Therefore, simple and Dr. tasks (AR 18) 23 On June 1, 2015, Plaintiff requested the Appeals Council to 24 25 review the ALJ’s Decision. The Appeals Council denied Plaintiff’s 26 request on August 24, 2016. (AR 1). 27 28 3 “Because The ALJ’s decision then became of the inconsistencies noted between the most recent opinion and the previous progress/treating notes from the same medical source, I reject the opinion of Dr. Cruz.” (AR. 18). 4 1 the 2 review the Decision. final Decision of the Commissioner, allowing this Court to See 42 U.S.C. §§ 405(g), 1383(c). 3 4 STANDARD OF REVIEW 5 6 This court reviews the Administration’s decision to determine 7 if it is free of legal error and supported by substantial evidence. 8 See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th 9 Cir. 2012). “Substantial evidence” is more than a mere scintilla, 10 but less than a preponderance. 11 1009 (9th Cir. 2014). 12 supports a finding, “a court must consider the record as a whole, 13 weighing both evidence that supports and evidence that detracts from 14 the [Commissioner’s] conclusion.” 15 1033, 1035 (9th Cir. 2001). 16 reasonably 17 conclusion, [a court] may not substitute [its] judgment for that of 18 the ALJ.” 19 2006). support Garrison v. Colvin, 759 F.3d 995, To determine whether substantial evidence either Aukland v. Massanari, 257 F.3d As a result, “[i]f the evidence can affirming or reversing the ALJ’s Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 20 PLAINTIFF’S CONTENTION 21 22 Plaintiff asserts that the ALJ improperly rejected the opinion 23 24 of the treating physician, Dr. Cruz. 25 // 26 // 27 // 28 5 (See Joint Stip. at 4-9, 17). 1 DISCUSSION 2 3 After reviewing the record, the Court finds that the ALJ’s 4 reason for rejecting the opinion of Dr. Cruz, Plaintiff’s treating 5 physician, was not specific and legitimate. 6 REMANDS this matter for further consideration. Accordingly, the Court 7 8 A. The ALJ’s Reason for Rejecting The Opinion Of the Treating Physician, Dr. Cruz, Was Not Specific and Legitimate 9 10 11 Plaintiff contends that the ALJ did not provide sufficiently 12 specific and legitimate reasons to reject the opinion of Dr. Cruz 13 for the following reasons: (1) substantial evidence did not support 14 the ALJ’s conclusion that Dr. Cruz’s opinion conflicts with the 15 evidence; 16 17 (2) the ALJ erroneously considered statements in the treating notes suggestive of improvement when such statements did not indicate that Plaintiff could function effectively; (3) 18 Plaintiff’s actual level of academic improvement was clouded by the 19 academic accommodations Plaintiff was receiving, which the ALJ did 20 not take into consideration; (4) the ALJ erred in finding that Dr. 21 Cruz’s treatment notes reflected mild to moderate limitations in all 22 areas of mental functioning when the cited records covered only 23 24 25 daily functioning and academic functioning; and (5) the record as a whole did not contain significant evidence which justified giving 26 more weight to Dr. Khushalani than to Dr. Cruz. 27 9). 28 6 (Joint Stip. at 6- 1 Defendant asserts that the ALJ properly rejected Dr. Cruz’s 2 opinion for the following reasons: (1) her opinion conflicted with 3 other 4 opinion that suggested such severe limitations; (2) her opinion was 5 6 medical opinions in the record and was the only medical unsupported by the record as a whole; and (3) her opinion was not supported by her own treatment records. (Joint Stip. at 10-15).4 7 8 Social Security regulations require the Agency to “evaluate 9 every medical opinion we receive,” giving more weight to evidence 10 from a claimant’s treating physician. 20 C.F.R. § 404.1527(c). If 11 the treating or examining physician’s opinions are not contradicted, 12 they can only be rejected with clear and convincing reasons. Lester 13 v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Where a treating or 14 examining physician's opinion is contradicted by another doctor, an 15 ALJ may only reject it by providing specific and legitimate reasons 16 that are supported by substantial evidence. Id. at 830-831. While 17 the opinion of a non-examining physician cannot by itself constitute 18 substantial evidence that justifies rejecting the opinion of a 19 treating physician, id. at 831, it may serve as substantial evidence 20 21 when it is consistent with “independent clinical findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th 22 4 23 24 25 26 27 28 Although Defendant asserts multiple reasons the ALJ’s rejection of Dr. Cruz’s opinion (see Joint Stip. at 10-15), the only reason that the ALJ provided for rejecting Dr. Cruz’s opinion was the “inconsistencies” between Dr. Cruz’s treatment notes and her opinion. Therefore, in determining whether the ALJ erred in failing to provide a specific and legitimate reason for rejecting the opinion of Dr. Cruz, the Court will only consider the ALJ’s stated basis for rejecting Dr. Cruz’s opinion. See Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citing Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001)); Trevizo v. Berryhill, No. 15-16277, 2017 WL 2925434, at *6, *n.4 (9th Cir. July 10, 2017). 7 1 Cir. 2002). 2 by “setting out a detailed and thorough summary of the facts and 3 conflicting evidence, stating his interpretation thereof and making 4 findings.” An ALJ satisfies the “substantial evidence” requirement Garrison, 759 F.3d at 1012 (citations omitted). 5 6 Since Dr. Cruz’s opinion was contradicted by the opinion of Dr. 7 Khushalani, the ALJ was required to provide specific and legitimate 8 reasons to reject Dr. Cruz’s opinion. 9 F.3d 1154, 1161 (9th Cir. 2014). See Ghanim v. Colvin, 763 10 11 The ALJ erred in rejecting Dr. Cruz’s opinion on the grounds 12 that it was inconsistent with her own treatment notes. 13 below, the treatment notes cited by the ALJ (see AR 16-18, citing AR 14 303-19, 322-28, 406-15, 453-58, 467-71, 525-533) did not contradict 15 16 As set forth Dr. Cruz’s opinion that Plaintiff had marked and severe limitations in the ability to acquire and use information and in attending and 17 completing tasks. Dr. Cruz’s initial assessment of Plaintiff on 18 June 25, 2013 was that Plaintiff had difficulty concentrating and 19 focusing, did not understand the questions posed to him, and was 20 receiving school counseling for his academic impairments. (AR 303- 21 11). A treatment note from July 22, 2013 concluded that Plaintiff 22 23 24 had difficulty concentrating, was hyperactive, highly distractible and anxious. that (AR 312-13). Plaintiff A September 10, 2013 treatment note 25 found 26 fidgety, anxious, depressed and that his symptoms mild to moderately 27 interfered 28 treatment with note his from appeared daily disinterested, social November 6, 8 poorly functioning. 2013 noted that (AR focused, 319). A Plaintiff was 1 anxious, fidgety, giggling and could not focus or concentrate. 2 324-28). A 3 Plaintiff had 4 better, and that he was fidgety, anxious and needed encouragement to 5 6 7 treatment note from reported that his talk about his symptoms. 2014 noted that December grades (AR 468). Plaintiff acted interest and low motivation. 3, in 2013 school (AR stated were that getting A treatment note from April 1, silly, giggled (AR 408-09). often, had low A treatment note from 8 April 22, 2014 described Plaintiff as poorly focused, easily 9 distracted, and giggling with rapid and pressured speech. (AR 410- 10 11). A treatment note from October 30, 2014 stated that Plaintiff 11 was more interested in academics, was focusing poorly with poor 12 13 14 concentration and was fidgety. (AR 529-30). A treatment note from December 1, 2014 found that Plaintiff was noticeably less giggly, 15 less anxious, 16 symptoms 17 functioning. 18 note showed that Plaintiff’s grades were improving, he had fair eye 19 contact, was fidgety and restless, had poor focus and concentration 20 and a good response to medication. mild had poor focus to moderately (AR 527-28). and attention interfered with and his that his daily ADHD social Finally, a January 1, 2015 treatment (AR 525-26). 21 22 23 24 25 26 These treatment notes did not reflect Plaintiff’s ability to acquire and use information and attend and complete tasks. the ALJ provided an extensive history of Although Plaintiff’s medical records, the ALJ failed to specify in what respect Dr. Cruz’s notes were inconsistent with her opinion about Plaintiff’s ability to 27 acquire and use information and attend and complete tasks. Thus, 28 the ALJ failed to set out “a detailed and thorough summary of the 9 1 facts and conflicting clinical evidence, stating his interpretation 2 thereof, and making findings.” 3 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 4 (9th Cir. 1986)). 5 6 7 Magallanes v. Bowen, 881 F.2d 747, See Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctor’s, are correct”) (quoting Embrey v. Bowen, 849 F.2d 8 418, 421-22 (9th Cir. 1988)). Therefore, the ALJ erred in failing 9 to provide a specific and legitimate reason for rejecting the 10 opinion of Dr. Cruz. 11 12 To the extent that the ALJ relied on treatment notes reflecting 13 14 occasional periods of improvement and positive response to 15 medication (see AR 16-17, citing AR 321-29, 525-531), these must be 16 “read in context of the overall diagnostic picture” the treating 17 physician describes. 18 Cir. 19 improvement 20 revealed that Plaintiff had difficulties concentrating, focusing and 21 maintaining attention. 22 notes that consistently reflected recurring symptoms did not support 23 the 24 25 26 2001). ALJ’s Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Although in those Plaintiff’s conclusion treatment condition, notes they indicated also some consistently See Ghanim, 763 F.3d at 1161 (treatment that the treating physician’s opinion was inconsistent with treatment notes); Trevizo, 2017 WL 2925434, at *8 (the ALJ’s rejection inconsistencies between of treating treatment physician’s notes and opinion opinion was for not a 27 specific and legitimate reason 28 inconsistencies was proffered). 10 where no interpretation of 1 B. The Court Cannot Conclude That The ALJ’s Error Was Harmless 2 3 “[H]armless error principles apply in the Social Security . . . 4 context.” 5 (citing Stout, 454 F.3d at 1054). 6 harmless where it is “inconsequential to the ultimate nondisability 7 determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) Generally, an ALJ’s error is Stout, 454 F.3d at 1055. 8 9 The Court cannot conclude that the ALJ’s error was harmless. 10 The ALJ’s rejection of Dr. Cruz’s opinion was integral to the ALJ’s 11 determination that Plaintiff did not functionally equal a Listed 12 Impairment. 13 was “inconsequential to the ultimate nondisability determination,” 14 the error cannot be deemed harmless. Because the Court cannot determine that the ALJ’s error See id. 15 16 C. Remand Is Warranted 17 The decision whether to remand for further proceedings or order 18 19 an immediate award of benefits Harman v. Apfel, 20 discretion. 21 2000). 22 administrative 23 developed, it is appropriate to exercise this discretion to direct 24 an immediate award of benefits. 25 whether to remand for further proceedings turns upon the likely 26 utility of such proceedings.”). 27 the case suggest that further administrative review could remedy the 28 Commissioner’s errors, remand is appropriate. Where no useful proceedings, is 211 purpose or within F.3d the 1172, would where the be district 1175-78 served record has court’s (9th by Cir. further been fully Id. at 1179 (“[T]he decision of However, where the circumstances of 11 McLeod v. Astrue, 640 1 F.3d 881, 888 (9th Cir. 2011); Harman, 211 F.3d at 1179-81. 2 3 Here, the Court remands because the ALJ failed to support his 4 stated reason for rejecting Dr. Cruz opinion – that the opinion was 5 inconsistent 6 record. 7 ALJ was required to Dr. Cruz’s opinion, nor does it establish that 8 the ALJ would necessarily be required to find Plaintiff disabled if 9 these deficiencies were remedied. with the treatment notes – with citations to the The record does not affirmatively establish what weight the Remand is therefore appropriate. 10 11 CONCLUSION 12 13 14 For the foregoing reasons, the decision of the Commissioner is REMANDED. 15 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 18 Dated: August 1, 2017. 19 20 21 22 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 12

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