Mary E. Brown v. Nancy A. Berryhill

Filing 20

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is VACATED, and the matter is REMANDED, without benefits, for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). See order for complete details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ) No. CV 17-2738-AS ) ) MEMORANDUM OPINION ) ) AND ORDER OF REMAND ) ) ) ) ) ) ) MARY E. BROWN, 11 Plaintiff, 12 13 14 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 Defendant. 16 17 18 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY 19 ORDERED 20 action consistent with this Opinion. that this matter is remanded for further administrative 21 22 I. PROCEEDINGS 23 24 On April 10, 2017, Plaintiff filed a Complaint seeking review of 25 the denial of her applications for Disability Insurance Benefits and 26 Supplemental Security Income. 27 have 28 consented to proceed (Docket Entry No. 1). before 1 the undersigned The parties United States 1 Magistrate Judge. 2 Defendant 3 (“AR”). 4 filed 5 respective positions regarding Plaintiff’s claims. 6 19). filed (Docket Entry Nos. 13-14). an Answer along with (Docket Entry Nos. 15-16). a Joint Stipulation the On September 5, 2017, Administrative Record On December 6, 2017, the parties (“Joint Stip.”), setting forth their (Docket Entry No. 7 8 9 The Court has taken this matter under submission without oral argument. See C.D. Cal. L.R. 7-15. 10 II. 11 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 12 13 On July 22, 2013, Plaintiff, formerly employed as a nurse’s aide 14 and a food service worker (AR 159, 175-76), filed applications for 15 Disability 16 alleging a disability onset date of May 17, 2013. 17 The Commissioner denied Plaintiff’s applications on January 15, 2014. 18 (AR 91-96). Insurance Benefits and Supplemental Security Income, (AR 134, 136). 19 20 On July 6, 2015, Plaintiff, represented by counsel, testified at 21 a hearing before Administrative Law Judge (“ALJ”) Sally Reason. (AR 22 34-53). 23 June Hagen. (See AR 53-56). The ALJ also heard testimony from vocational expert (“VE”) 24 25 On August 10, 2015, (See AR 13-24). the ALJ denied Plaintiff’s 26 applications. Applying the five-step sequential 27 process, the ALJ found at step one that Plaintiff has not engaged in 28 substantial gainful activity since May 17, 2013, the alleged onset 2 1 date. 2 of 3 impairments.1 4 Plaintiff does not have an impairment or combination of impairments 5 that meet or medically equal the severity of any of the listings 6 7 8 (AR 15). back At step two, the ALJ found that Plaintiff’s history strain and major (AR 15). depressive disorder are a severe At step three, the ALJ determined that enumerated in the regulations. (AR 16). The ALJ determined that Plaintiff has the Residual Functional Capacity (“RFC”)2 to perform medium work3 with the following limitations: “occasionally stoop and 9 climb; and limited to frequent contact with the public, coworkers, 10 and supervisors.” (AR 17). At step four, the ALJ found that 11 Plaintiff is unable to perform her past relevant work as a “CNA/nurse 12 aide.” (AR 22). At step five, the ALJ, relying on the VE’s hearing 13 14 15 testimony, found that Plaintiff, with her age, education, work experience and RFC, could perform the following representative jobs 16 existing in significant numbers in the national 17 Helper” (Dictionary of Occupational Titles (“DOT”) 317.687-010) and 18 “Hand Packager” (DOT 920.587-018). 19 determined that Plaintiff was not under a disability as defined by 20 the Social Security Act, from May 17, 2013, through the date of the 21 decision. (AR 24). economy: “Cook Accordingly, the ALJ (Id.). 22 1 23 24 25 26 27 28 The ALJ found Plaintiff’s history of left plantar fasciitis, atypical chest pain, and hyperthyroidism to be non-severe. (AR 16). 2 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). 3 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. §§ 404.1567(c), 416.967(c). 3 1 The Appeals Council denied Plaintiff’s request for review on 2 February 9, 2017. (AR 1–3). Plaintiff now seeks judicial review of 3 the 4 Commissioner. ALJ’s decision, which stands as the final decision of the 42 U.S.C. §§ 405(g), 1383(c). 5 6 III. STANDARD OF REVIEW 7 8 9 This Court reviews the Administration’s decision to determine if it is free of legal error and supported by substantial evidence. See 10 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). 11 evidence” 12 preponderance. 13 2014). 14 “a court must consider the record as a whole, weighing both evidence 15 that supports and evidence that detracts from the [Commissioner’s] 16 conclusion.” 17 2001) (internal quotation omitted). 18 can support either affirming or reversing the ALJ’s conclusion, [a 19 court] 20 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). is more than a mere scintilla, but “Substantial less than a Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. To determine whether substantial evidence supports a finding, may Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. not substitute [its] As a result, “[i]f the evidence judgment for that of the ALJ.” 21 22 IV. DISCUSSION 23 24 Plaintiff contends that the ALJ erred in “silently” rejecting 25 limitations opined by non-examining state agency consultant Douglas 26 Robbins, Ph.D., by failing to discuss Dr. Robbins’s opinion. 27 Stip. at 4-7, 10-11). (Joint After consideration of the parties’ arguments 28 4 1 and the record as a whole, the Court finds that Plaintiff’s claim 2 warrants remand for further consideration. 3 4 A. The ALJ Failed To Consider Dr. Robbins’s Opinion 5 The 6 Commissioner’s Regulations provide that ALJs “are not 7 required to adopt” agency medical consultants’ opinions, “but they 8 must consider this evidence . . . because [the Administration’s] 9 Federal or 10 highly qualified 11 evaluation.” 12 Ruling 96-6p, 1996 WL 374180 (July 2, 1996) (an ALJ may not ignore 13 the opinions of a consultative examiner, and must explain the weight 14 accorded 15 404.1527(e), 416.927(e). State agency and medical or experts psychological in Social consultants Security are disability 20 C.F.R. § 404.1513a(b)(1); see also Social Security to such opinions in their decision); 20 C.F.R. §§ 16 17 Dr. Robbins reviewed Plaintiff’s medical records and opined, on 18 November 8, 2013, that Plaintiff is “[n]ot significantly limited” in 19 her ability to understand, remember and carry out “very short and 20 simple instructions,” and she “is able to understand, remember, and 21 follow simple 1-2 step procedures.” (AR 68, 83). 22 that limited” 23 understand, remember and carry out “detailed instructions.” 24 83). 25 attention/concentration for 2 hr periods to complete simple tasks” 26 and 27 afforded breaks/rest periods.” 28 Plaintiff Plaintiff He “would is further be is able “[m]oderately opined to that work “[m]oderately an Plaintiff 8-hr day in “is 5 in her able utilizing (AR 68-69, 83). limited” Dr. Robbins stated her ability to all to (AR 68, maintain regularly He also stated that ability to interact 1 appropriately with the general 2 infrequent/casual interactions with co-workers, supervisors, and the 3 public.” 4 environment should be of a supportive nature.” (AR 69, 84). public, but she “can tolerate He noted that Plaintiff’s “[s]upervisory (AR 69, 84). 5 In 6 her decision, the ALJ failed to mention or address Dr. 7 Robbins’s psychological assessment. The ALJ’s RFC did not include 8 any mental or social limitations other than “frequent contact with 9 the public, coworkers, and supervisors.” (AR 17). Moreover, the ALJ 10 gave “little weight” to the only other mental assessment in the 11 record, that of psychiatric consultative examiner Gurmanjot Bhullar, 12 M.D., (AR 22), who found no mental or social limitations. 13 22). (AR 421- 14 15 Defendant contends that the ALJ did not “reject” Dr. Robbins’s 16 opinion, in part because the opinion “does not preclude complex work, 17 but rather notes moderate limitations in that area and affirms that 18 Plaintiff 19 further claims that Dr. Robbins’s opinion is consistent with the jobs 20 that the ALJ found Plaintiff capable of performing. 21 Therefore, Defendant asserts that the ALJ’s failure to address the 22 opinion is not reversible error. can do simple work.” (Joint Stip. at 9). Defendant (Id. at 9-10). (Id.). 23 24 25 The Court disagrees. Dr. Robbins effectively limited Plaintiff to “simple 1-2 step procedures.”4 (AR 68, 83). Both of the jobs 26 27 28 4 Specifically, when asked to “[e]xplain in narrative form the presence and degree of specific understanding and memory capacities and/or limitations,” Dr. Robbins wrote that Plaintiff “is able to 6 1 that the ALJ found Plaintiff capable of performing – “Cook Helper” 2 (DOT 317.687-010) and “Hand Packager” (DOT 920.587-018) — require 3 Level 4 understanding to carry out detailed but uninvolved written or oral 5 instructions.” 6 Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1003 (9th Cir. 7 2015), the Ninth Circuit held that a limitation to “one- and two-step 8 tasks” conflicts with the demands of Level Two reasoning.5 9 Circuit noted that this conflict “is brought into relief by the close 10 similarity between [a limitation to one- and two-step tasks] and 11 Level One reasoning,” which “requires a person to apply ‘commonsense 12 understanding to carry out simple one- or two-step instructions.’” 13 Id. 2 reasoning, which entails “[a]pply[ing] commonsense DOT 317.687-010, 920.587-018 (emphasis added). In The Ninth 14 15 Accordingly, the ALJ erred in failing to address or otherwise 16 account 17 “simple 1-2 step procedures,” and such error was not harmless.6 See, understand, remember, and follow simple 1-2 step procedures.” 68, 83). (AR 18 19 20 21 22 23 24 25 for Dr. Robbins’s opinion, including the limitation to 5 This is distinct from a limitation to “simple tasks.” Courts have found that a person who is limited merely to “simple tasks” can perform jobs that require Level 2 reasoning. See, e.g., Abrew v. Astrue, 303 F. App’x 567, 569 (9th Cir. 2008) (finding “no conflict between the ALJ's step five determination that [the claimant] could complete only simple tasks and the [VE’s] testimony that [the claimant] could do jobs that [require] ‘Reasoning Level 2’”); Meissl v. Barnhart, 403 F. Supp. 2d 981, 984 (C.D. Cal. 2005) (finding that plaintiff's ability to perform “simple tasks . . . that had some element of repetitiveness to them” indicated a reasoning level of 2). 26 6 27 28 Dr. Robbins’s assessment of Plaintiff’s social limitations also differs from the RFC, as Defendant acknowledges. (See Joint Stip. at 9). Dr. Robbins opined that Plaintiff “can tolerate infrequent/casual interactions with co-workers, supervisors, and the 7 1 e.g., Cardoza v. Astrue, 2011 WL 1211469, at *1 (C.D. Cal. Mar. 29, 2 2011) (finding that the ALJ erred “because he failed to explain why 3 he implicitly rejected the opinion of . . . one of the State agency 4 medical 5 impairment limited her to performing one and two-step repetitive work 6 tasks”); Garcia v. Colvin, 2016 WL 6304626, at *6 (C.D. Cal. Oct. 27, 7 2016) (“[T]the ALJ’s simple, repetitive tasks RFC limitation is . . . 8 plainly inconsistent with [the state agency reviewing psychologist’s] 9 ‘easy 1, 2 step directions’ limitation which the ALJ decision never and psychological consultants, that plaintiff’s mental 10 mentions. The ALJ necessarily rejected the latter limitation without 11 any explanation as required by Social Security regulations.”); Wilson 12 v. Colvin, 2017 WL 1861839, at *6 (N.D. Cal. May 9, 2017) (“Following 13 Rounds, a number of district courts in this Circuit have reversed ALJ 14 decisions imposing a ‘simple, repetitive tasks’ RFC limit where the 15 ALJs fail to address and distinguish conclusions by doctors that 16 claimants 17 cases)). can perform one-and-two step instructions.” (collecting 18 19 B. Remand Is Warranted 20 The decision whether to remand for further proceedings or order 21 22 an immediate award of benefits is within the district court’s 23 24 25 26 27 28 public,” and the “[s]upervisory environment should be of a supportive nature.” (AR 69, 84 (emphasis added)). The ALJ found only that Plaintiff is “limited to frequent contact with the public, coworkers, and supervisors.” (AR 17 (emphasis added)). The jobs of “Cook Helper” and “Hand Packager” require a level of interaction that is “not significant,” (DOT 317.687-010, 920.587-018), but it is unclear whether the nature of that interaction would conflict with Dr. Robbins’s assessment. 8 1 discretion. 2 Where no useful purpose would be served by further administrative 3 proceedings, or where the record has been fully developed, it is 4 appropriate to exercise this discretion to direct an immediate award 5 of benefits. 6 further 7 proceedings.”). 8 case 9 Commissioner’s errors, remand is appropriate. 10 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Id. at 1179 (“[T]he decision of whether to remand for proceedings suggest turns upon the likely utility of such However, where, as here, the circumstances of the that further administrative review could remedy the McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman, 211 F.3d at 1179-81. 11 12 Since the ALJ failed to specifically address or otherwise 13 account for Dr. Robbins’s opinion, it is unclear whether the ALJ 14 properly considered the opinion in assessing Plaintiff’s RFC. Even 15 if into 16 account, the record does not affirmatively establish that Plaintiff 17 18 the ALJ is disabled. ALJ can properly credits or takes Dr. Robbins’s opinion The Court remands for further proceedings so that the consider Dr. Robbins’s opinion, 19 resolve any other issues, as necessary. 20 // 21 // 22 // 23 24 25 26 27 28 9 as well as address and V. 1 ORDER 2 3 For the foregoing reasons, the decision of the Administrative 4 Law Judge is VACATED, and the matter is REMANDED, without benefits, 5 for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: February 7, 2018 10 11 12 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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