Dwayne L. Jackson v. Michael J. Astrue

Filing 14

MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 DWAYNE L. JACKSON, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,1 ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ___________________________________) NO. EDCV 12-00606-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on May 3, 2012, seeking review of the 19 denial of plaintiff’s application for a period of disability, disability 20 insurance benefits (“DIB”), and supplemental security income 21 (“SSI”). On June 15, 2012, the parties consented, pursuant to 28 U.S.C. 22 § 636(c), to proceed before the undersigned United States Magistrate 23 Judge. The parties filed a Joint Stipulation on January 31, 2013, in which: plaintiff seeks an order reversing the Commissioner’s decision 24 25 26 27 28 1 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013, and is substituted in place of former Commissioner Michael J. Astrue as the defendant in this action. (See Fed. R. Civ. P. 25(d).) 1 and remanding this case for further administrative proceedings, 2 including, but not limited to, the taking of additional vocational 3 testimony; and the Commissioner requests that his decision be affirmed 4 or, alternatively, remanded for further administrative proceedings. 5 6 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 7 8 9 Plaintiff filed an application for a period of disability, DIB, and SSI on August 20, 2007. (Administrative Record (“A.R.”) 20.) 10 Plaintiff, who was born on April 22, 1960,2 claims to have been disabled 11 since February 1, 2001 (A.R. 22), due to chronic pain in his back and 12 legs, right foot pain, left shoulder pain, nervousness, and depression 13 (A.R. 35, 67, 73). 14 school bus driver. Plaintiff has past relevant work experience as a (A.R. 25.) 15 16 After the Commissioner denied plaintiff’s claims initially and upon 17 reconsideration (A.R. 67-71, 73-78), plaintiff requested a hearing (A.R. 18 79). 19 appeared and testified at a hearing before Administrative Law Judge 20 Mason D. Harrell, Jr. (the “ALJ”). (A.R. 32-62.) 21 David A. Rinehart also testified. (Id.) 22 denied 23 subsequently denied plaintiff’s request for review of the ALJ’s decision 24 (A.R. 1-4). That decision is now at issue in this action. On April 29, 2010, plaintiff, who was represented by counsel, plaintiff’s claim (A.R. 20-27), Vocational expert On May 20, 2010, the ALJ and the Appeals Council 25 26 27 28 2 On the alleged onset date, plaintiff was 40 years old, which is defined as a younger individual. (A.R. 25; citing 20 C.F.R. §§ 404.1563, 416.963.) 2 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 The ALJ found that plaintiff met the insured status requirements of 4 the Social Security Act through March 31, 2003, and has not engaged in 5 substantial gainful activity since February 1, 2001, the alleged onset 6 date of his disability. 7 has the severe impairments of status post gunshot wound to the left 8 shoulder and depression. 9 plaintiff does not have an impairment or combination of impairments that 10 meets or medically equals one of the listed impairments in 20 C.F.R. 11 Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 12 404.1526, 416.920(d), 416.925, and 416.926). (A.R. 22.) (Id.) The ALJ determined that plaintiff The ALJ concluded, however, that (Id.) 13 14 The ALJ determined that plaintiff has the residual functional 15 capacity (“RFC”) to perform less than the full range of medium work as 16 defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c) with the following 17 limitations: 18 19 [plaintiff] is limited to simple repetitive tasks. 20 lift up to 20 pounds with his left arm but he cannot use his 21 left arm to do work above shoulder level. 22 fast paced work or work that requires hypervigilance. 23 cannot work with the public and his interactions with co- 24 workers and supervisors should be non-intense. 25 work 2 or less times per month. 26 27 (A.R. 23.) 28 3 He can He cannot perform He He would miss 1 The ALJ found that plaintiff is unable to perform his past relevant 2 work. 3 and after having considered plaintiff’s age, education,3 work experience, 4 and the testimony of the vocational expert, the ALJ found “there are 5 jobs that exist in significant numbers in the national economy that 6 [plaintiff] can perform,” including “electronics worker” and “sewing 7 machine operator.” 8 plaintiff has not been under a disability, as defined in the Social 9 Security Act, from February 1, 2001, through the date of the ALJ’s 10 (A.R. 25.) decision. However, based upon his RFC assessment for plaintiff (A.R. 26.) Accordingly, the ALJ concluded that (A.R. 27.) 11 12 STANDARD OF REVIEW 13 14 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 15 decision to determine whether it is free from legal error and supported 16 by substantial evidence in the record as a whole. 17 F.3d 625, 630 (9th Cir. 2007). 18 evidence as a reasonable mind might accept as adequate to support a 19 conclusion.’” 20 a mere scintilla but not necessarily a preponderance.” 21 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 22 record can constitute substantial evidence, only those ‘reasonably drawn 23 from the record’ will suffice.” 24 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is “‘such relevant Id. (citation omitted). The “evidence must be more than Connett v. “While inferences from the Widmark v. Barnhart, 454 F.3d 1063, 25 26 Although this Court cannot substitute its discretion for that of 27 3 28 The ALJ found that plaintiff has at least a high school education and is able to communicate in English. (A.R. 26.) 4 1 the Commissioner, the Court nonetheless must review the record as a 2 whole, “weighing both the evidence that supports and the evidence that 3 detracts from the [Commissioner’s] conclusion.” 4 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 5 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 6 responsible for determining credibility, resolving conflicts in medical 7 testimony, and for resolving ambiguities.” 8 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec’y of “The ALJ is Andrews v. Shalala, 53 F.3d 9 10 The Court will uphold the Commissioner’s decision when the evidence 11 is susceptible to more than one rational interpretation. Burch v. 12 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 13 review only the reasons stated by the ALJ in his decision “and may not 14 affirm the ALJ on a ground upon which he did not rely.” 15 at 630; see also Connett, 340 F.3d at 874. 16 the Commissioner’s decision if it is based on harmless error, which 17 exists only when it is “clear from the record that an ALJ’s error was 18 ‘inconsequential to the ultimate nondisability determination.’” Robbins 19 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 20 Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 21 at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 22 23 DISCUSSION 24 25 Plaintiff claims the ALJ erred by not considering properly: 26 (1) plaintiff’s subjective symptom testimony; and (2) the RFC assessment 27 for plaintiff. 28 23.) (Joint Stipulation (“Joint Stip.”) at 4-6, 13-17, 22- 5 1 I. The ALJ Failed To Provide Clear And Convincing Reasons 2 For Finding Plaintiff’s Subjective Symptom Testimony To 3 Be Not Credible. 4 5 Once a disability claimant produces objective medical evidence of 6 an underlying impairment that is reasonably likely to be the source of 7 claimant’s subjective symptom(s), all subjective testimony as to the 8 severity of the symptoms must be considered. 9 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 346 Cir. 1991); 10 (9th 11 (explaining how pain and other symptoms are evaluated). 12 ALJ makes 13 thereof, he or she may only find an applicant not credible by making 14 specific findings as to credibility and stating clear and convincing 15 reasons for each.” 16 considered in weighing a claimant’s credibility include: 17 claimant’s reputation for truthfulness; (2) inconsistencies either in 18 the claimant’s testimony or between the claimant’s testimony and her 19 conduct; (3) the claimant’s daily activities; (4) the claimant’s work 20 record; and (5) testimony from physicians and third parties concerning 21 the nature, severity, and effect of the symptoms of which the claimant 22 complains. 23 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). a see also finding of 20 C.F.R. §§ Moisa v. Barnhart, 367 malingering based 404.1529(a), on Robbins, 466 F.3d at 883. 416.929(a) “[U]nless an affirmative evidence The factors to be (1) the See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 24 25 At the April 29, 2010 administrative hearing, plaintiff testified 26 that he has: major depression; chronic back pain; aching legs; bad 27 circulation in his knees; and arthritis in his right ankle. 28 37-38.) (A.R. 35, Plaintiff also testified that he was shot in his left shoulder 6 1 and “can’t function with it like [he] normally could.” 2 Plaintiff indicated that he presently is taking Darvocet4 for his pain 3 and Lexapro for his depression. (A.R. 46, 50.) With respect to his 4 physical testified he 5 sitting for long periods of time due to his impairments. 6 also testified that he has problems using his left hand. 7 47.) 8 anything that weighs 20 pounds, because “it strains [his] back shoulder 9 section.” limitations, plaintiff that has (A.R. 44.) difficultly (A.R. 46.) He (A.R. For example, plaintiff stated that he has difficulty lifting (Id.) He also stated that he limits himself to “smaller 10 tasks around the house so that [he does not] continue to reinjure or re- 11 aggravate [his] shoulder.” 12 plaintiff testified that: 13 up 14 [him]self”; he has problems concentrating; he has “very low confidence” 15 and is “always in fear . . . of someone finding something or [a] reason 16 to fire [him]”; he has no motivation; he does not trust anyone; and he 17 has crying spells. [and] get going in (Id.) With respect to his depression, he has no energy; it is hard for him to “get the morning”; he “pretty much stay[s] to (A.R. 50-54.) 18 19 The ALJ found that plaintiff has the severe impairments of “status 20 post gunshot wound to the left shoulder, and depression.” (A.R. 22.) 21 The ALJ cited no evidence of malingering by plaintiff. Accordingly, the 22 ALJ’s reasons for discrediting plaintiff’s subjective complaints must be 23 clear and convincing. 24 25 26 In his decision, the ALJ found that “[plaintiff]’s allegations were not fully credible.” (A.R. 25.) In finding plaintiff to be not fully 27 4 28 Plaintiff indicated that the Darvocet causes him to sleep for a few hours during the day. (A.R. 50-51.) 7 1 credible, the ALJ stated that “[plaintiff]’s statements concerning the 2 intensity, persistence and limiting effects of the alleged symptoms are 3 credible only to the extent that they are consistent with [the ALJ’s RFC 4 assessment for plaintiff].” 5 contention, 6 plaintiff to be not credible.5 7 various 8 allegations to be not credible, the ALJ’s boilerplate statement is not 9 “sufficiently specific” to allow this Court to determine whether the ALJ no others symptoms and (Id.) reasons were Contrary to the Commissioner’s cited by the ALJ for finding As noted supra, plaintiff testified to limitations. While the ALJ may find these 10 rejected plaintiff’s statements on permissible grounds. Therefore, the 11 ALJ’s reasoning does not constitute a clear and convincing reasons, as 12 required, for finding plaintiff to be not credible. 13 14 Accordingly, because the ALJ failed to give clear and convincing 15 reasons for finding plaintiff to be not credible, the ALJ committed 16 reversible error. 17 18 II. The ALJ Failed To Consider Properly The Opinion Of 19 Plaintiff’s Treating Physician, And Therefore, On Remand, 20 The ALJ Needs To Revisit Plaintiff’s RFC. 21 22 Plaintiff claims that the ALJ erred in failing to include in his 23 assessment of plaintiff’s RFC the opinion of consultative psychiatrist 24 Ernest A. Bagner, M.D., that plaintiff would have mild to moderate 25 26 27 28 5 While the Commissioner now offers other reasons to explain the ALJ’s credibility determination, the Court cannot entertain these post hoc rationalizations. See, e.g., Connett, 340 F.3d at 874 (finding that “[i]t was error for the district court to affirm the ALJ’s credibility decision based on evidence that the ALJ did not discuss”). 8 1 limitations with respect to handling normal stresses at work -- the 2 inclusion of which could have affected the ALJ’s determination that 3 plaintiff can perform other work. (Joint Stip. at 4-6, 13-14.) 4 5 It is the responsibility of the ALJ to analyze evidence and resolve 6 conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 7 (9th Cir. 1989). 8 assessing a social security claim, “[g]enerally, a treating physician’s 9 opinion carries more weight than an examining physician’s, and an 10 examining physician’s opinion carries more weight than a reviewing 11 physician’s.” 12 2001); 20 C.F.R. §§ 404.1527(d), 416.927(d). In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 13 14 An ALJ must provide “clear and convincing reasons” for rejecting 15 the uncontradicted opinion of an examining physician. Lester v. Chater, 16 81 F.3d 821, 830 (9th Cir. 1995). 17 an examining physician, an ALJ must provide “specific and legitimate 18 reasons that are supported by substantial evidence in the record.” 19 at 830-31. 20 substantial 21 claimant’s RFC, if it is properly supported by the medical evidence. 22 See, 23 2001)(consultative examiner’s opinon on its own constitute substantial 24 evidence, because it rested on independent examination of claimant). e.g., To reject the contradicted opinion of Id. The opinion of an examining physician may constitute evidence Tonapetyan upon v. which an Halter, ALJ 242 may F.3d rely 1144, in assessing 1149 (9th a Cir. 25 26 In determining a claimant’s RFC, an ALJ will consider all the 27 relevant evidence 28 416.945(a)(1). in the record. 20 C.F.R. §§ 404.1545(a)(1), In so doing, the ALJ will consider all claimant’s 9 1 medically determinable impairments, including those that 2 “‘severe.’” 3 will consider “any statement about what [the claimant] can still do that 4 have been provided by medical sources.” 5 416.945(a)(3). 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). are not The ALJ also 20 C.F.R. §§ 404.1545(a)(3), 6 7 In a March 27, 2008 psychiatric evaluation, Dr. Bagner diagnosed 8 plaintiff with, inter alia, 9 depressive specified, and alcohol abuse. disorder, (A.R. 235.) not otherwise Dr. Bagner opined that 10 plaintiff would have: 11 peers 12 concentration 13 limitations completing complex tasks and completing a normal workweek 14 without interruption”; and “mild to moderate limitations handling normal 15 stresses at work.” or the “no limitations interacting with supervisors, public”; and “zero attention to limitations completing and mild simple maintaining tasks”; “mild (A.R. 236; emphasis added.) 16 17 In his decision, the ALJ summarized the various medical opinions 18 regarding plaintiff’s mental impairment and resulting limitations. 19 example, the ALJ noted: 20 regarding plaintiff’s mental impairment and functional limitations; (2) 21 treatment notes from Stuart Finkelstein, M.D., which indicated that 22 plaintiff was depressed and drinking alcohol; and (3) the opinion of the 23 State Agency psychiatrist who opined that plaintiff’s mental impairment 24 was non-severe. 25 the ALJ stated that notwithstanding the opinion of the State Agency 26 psychiatrist, the ALJ was giving plaintiff “the benefit of the doubt by 27 finding 28 limitations.” that (1) Dr. Bagner’s diagnoses and opinions (A.R. 24-25.) his depression (A.R. 25.) For After summarizing the various opinions, results in some work-related mental Notably, however, the ALJ never specifically 10 1 indicated the physician’s opinion upon which he relied in determining 2 the extent of plaintiff’s mental limitations. 3 4 Although not entirely clear, it appears that the ALJ afforded the 5 greatest weight to the opinion of Dr. Bagner, because many of Dr. 6 Bagner’s limitations are reflected in the ALJ’s RFC assessment for 7 plaintiff. 8 ALJ’s RFC assessment for plaintiff includes a limitation to simple 9 repetitive For example, consistently with Dr. Bagner’s opinion, the tasks and no “fast paced” work or work that requires 10 hypervigilance. 11 Dr. 12 limitations in handling normal stresses at work. 13 accept the full extent of Dr. Bagner’s opinion, the ALJ may not reject 14 it, or significant parts of it, without giving specific and legitimate 15 reasons for so doing. 16 Cir. 1990)(mere summarization and implicit rejection of physician’s 17 opinion does not suffice). The ALJ’s failure to proffer any reason, let 18 alone an appropriate reason, for failing to incorporate properly and/or 19 to 20 constitutes error.6 21 consider Dr. 22 plaintiff. 23 /// 24 /// Bagner’s explain However, the ALJ’s RFC assessment does not incorporate opinion the that plaintiff would have mild to moderate While the ALJ need not See Salvador v. Sullivan, 917 F.2d 13, 14 (9th dismissal of a portion of Dr. Bagner’s opinion Accordingly, on remand, the ALJ needs to properly Bagner’s opinion and revisit his RFC assessment for 25 6 26 27 28 Although the Commissioner now offers other reasons to explain the ALJ’s rejection of the opinion of Dr. Ahmed, the Court cannot entertain these post hoc rationalizations. See, e.g., Orn, 495 F.3d at 630 (“We review only the reasons provided by the ALJ in the disability determination and may not affirm on a ground upon which he did not rely”). 11 1 III. Remand Is Required. 2 3 The decision whether to remand for further proceedings or order an 4 immediate award of benefits is within the district court’s discretion. 5 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 6 useful purpose would be served by further administrative proceedings, or 7 where the record has been fully developed, it is appropriate to exercise 8 this discretion to direct an immediate award of benefits. 9 (“[T]he decision of whether to remand for further proceedings turns upon Where no Id. at 1179 10 the likely utility of such proceedings.”). However, where there are 11 outstanding issues that must be resolved before a determination of 12 disability can be made, and it is not clear from the record that the ALJ 13 would be required to find the claimant disabled if all the evidence were 14 properly evaluated, remand is appropriate. Id. at 1179-81. 15 16 Remand is the appropriate remedy to allow the ALJ the opportunity 17 to remedy the above-mentioned deficiencies and errors. 18 Shalala, 12 F.3d 915, 918 (9th Cir. 1993)(ordering remand so that the 19 ALJ could articulate specific and appropriate findings, if any existed, 20 for rejecting the claimant’s subjective pain testimony). On remand, the 21 ALJ 22 plaintiff’s 23 plaintiff’s testimony is not credible. 24 either credit Dr. Bagner’s opinion or provide appropriate reasons 25 supported by substantial evidence for rejecting it. After doing so, the 26 ALJ may need to reassess plaintiff’s RFC, in which case additional 27 testimony from a vocational expert likely will be needed to determine 28 what work, if any, plaintiff can perform. must revisit plaintiff’s testimony or give testimony clear 12 and and must See Dodrill v. either convincing credit reasons why Additionally, the ALJ must 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: May 2, 2013 14 15 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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