Yvonne R. Ibarra v. Carolyn W. Colvin

Filing 18

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 document for complete details) (afe)

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9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11
12

YVONNE R. IBARRA,

13

Plaintiff,
v.

14
15
16

NANCY A. BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

17

) No. EDCV 16-1197 AS
)
) MEMORANDUM OPINION AND
)
) ORDER OF REMAND
)
)
)
)
)
)
)

18
19

Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY

20

ORDERED

that

this

matter

is

remanded

21

for

further

administrative

action consistent with this Opinion.

22

I. PROCEEDINGS

23
24
25
26
27
28

On

April

27,

2012,

Plaintiff

Yvonne

R.

Ibarra

(“Plaintiff”)

applied for social security benefits alleging a disabling condition
1

Nancy A. Berryhill is substituted for former Acting
Commissioner Carolyn W. Colvin. See 42 U.S.C. § 205(g); Fed. R. Civ.
P. 25(d).
1

1

beginning

2

Administrative

3

records

4

(“V.E.”) David Rinehart.

5

denied Plaintiff benefits in a written decision.

6

Appeals Council denied review of the ALJ’s decision.

April

and

1,

Law

2010.
Judge

heard

(AR

(“ALJ”)

testimony

143).
William

from

On
K.

Plaintiff

(AR 31-58).

November
Mueller

and

4,

2013,

examined

vocational

the

expert

On December 4, 2013, the ALJ
(AR 14-26).

The

(AR 1-3).

7
8
9

On

June

8,

2016,

Plaintiff

filed

a

Complaint

pursuant

to

42 U.S.C. § 405(g) alleging that the Social Security Administration

10

erred in denying benefits.

11

2016, Defendant filed an Answer to the Complaint, (Docket Entry No.

12

15), and the Certified Administrative Record (“AR”), (Docket Entry

13

No. 16).

14

States Magistrate Judge.

15

2017, the parties filed a Joint Stipulation (“Joint Stip.”) setting

16

forth

17

Entry No. 17).

(Docket Entry No. 1).

On November 15,

The parties have consented to proceed before a United

their

respective

(Docket Entry Nos. 11, 12).

positions

on

Plaintiff’s

On February 9,

claims.

(Docket

18

II.

19

SUMMARY OF ALJ’S DECISION

20

The ALJ applied the five-step process in evaluating Plaintiff’s

21
22

case.

(AR 17-19).

23

had not engaged in substantial gainful activity after the date of her

24

application.

25

severe impairments included a right hip replacement and obesity.

26

19).

27

medically

28

severe mental impairment.

In

At step one, the ALJ determined that Plaintiff

(AR 19).

making

this

determinable

At step two, the ALJ found that Plaintiff’s

finding,

the

adjustment

disorder

(AR 20).
2

ALJ

ruled
did

that
not

(AR

Plaintiff’s
constitute

a

At step three, the ALJ found

1

that Plaintiff’s impairments did not meet or equal a listing found in

2

20 C.F.R. Part 404, Subpart P, Appendix 1.

(AR 20-21).

3

Before proceeding to step four, the ALJ found that Plaintiff had

4
5

the

residual

functional

capacity

(“RFC”)

to

perform

light

work,

6

“except occasionally perform postural activities.”

7

making his RFC finding, the ALJ ruled that Plaintiff’s allegations

8

concerning the intensity, persistence, and limiting effects of her

9

symptoms were “less than fully credible.”

(AR 21).

In

(AR 22).

10
11

At step four, the ALJ determined that Plaintiff was able to

12

perform

past

relevant

13

painting company, personnel recruiter, and assistant manager.

(AR

14

25-26).

not

15

disabled within the meaning of the Social Security Act.

Accordingly,

work

the

as

ALJ

a

waitress,

determined

owner/operator

that

Plaintiff

of

was

a

(AR 26).

16

III.

17

STANDARD OF REVIEW

18
19

This court reviews the Administration’s decision to determine if

20

the decision is free of legal error and supported by substantial

21

evidence.

22

1157, 1161 (9th Cir. 2012).

23

mere scintilla, but less than a preponderance.

24

759 F.3d 995, 1009 (9th Cir. 2014).

25

evidence supports a finding, “a court must consider the record as a

26

whole,

27

detracts

28

Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation

See Brewes v. Commissioner of Soc. Sec. Admin., 682 F.3d

weighing
from

both
the

“Substantial evidence” is more than a

evidence

To determine whether substantial

that

[Commissioner’s]

3

Garrison v. Colvin,

supports

and

conclusion.”

evidence
Aukland

that
v.

1

omitted).

2

affirming

3

substitute [its] judgment for that of the ALJ.”

4

Admin., 466 F.3d 880, 882 (9th Cir. 2006).

As
or

a

result,

reversing

“[i]f

the

the

ALJ’s

evidence

can

conclusion,

[a

support
court]

either
may

not

Robbins v. Soc. Sec.

5
6

IV.

PLAINTIFF’S CONTENTIONS

7
8
9

Plaintiff

raises

two

grounds

for

relief.

First,

Plaintiff

claims that the ALJ’s RFC assessment was not supported by substantial

10

evidence

11

lumbar spine impairment and adjustment disorder were not “severe”

12

impairments.

13

that

14

subjective complaints.

the

because

ALJ

the

ALJ

improperly

determined

(See Joint Stip. at 4-7).
provided

insufficient

that

Plaintiff’s

Second, Plaintiff claims

reasons

for

rejecting

her

(Id. at 13-15).

15
16

V. DISCUSSION

17
18

After reviewing the record, the Court finds that Plaintiff’s

19

claim regarding her adjustment disorder warrants remand for further

20

consideration.

21

claims.

The

Court

declines

to

address

Plaintiff’s

other

22
23

A.

The ALJ Erred In Evaluating the Medical Evidence

24
25
26

Social Security Ruling 85-28 governs the evaluation of whether a
claimant’s impairments are “severe”:

27
28
4

1

An impairment or combination of impairments is found “not

2

severe” . . . when medical evidence establishes only a

3

slight abnormality or a combination of slight abnormalities

4

which

5

individual’s

6

impairment[] has no more than a minimal effect on his or

7

her

8

activities[.]

would

have

no

ability

physical

or

more
to

mental

than

work

a

minimal

. . .

ability[]

to

i.e.,

effect
the

perform

on

an

person’s

basic

work

9
10

SSR 85-28 at *2-*3; see also Smolen v. Chater, 80 F.3d 1273, 1290

11

(9th Cir. 1996) (the severity concept is “a de minimis screening

12

device to dispose of groundless claims”) (citation omitted).

13

impairment or combination of impairments may be found not severe only

14

if the evidence establishes a “slight abnormality that has no more

15

than a minimal effect on an individual’s ability to work,” and a

16

finding that a medically determinable impairment is non-severe must

17

be “clearly established by medical evidence.”

18

F.3d 683, 686-87 (9th Cir. 2005).

An

Webb v. Barnhart, 433

19

Plaintiff alleges that the ALJ erred in evaluating the severity

20
21

of

her

adjustment

22

medical evidence.

23

require

24

receive[s],”

25

treating physician.

26

examining physician’s opinion is contradicted by another doctor, the

27

Commissioner “must determine credibility and resolve the conflict.”

28

Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir.

the

disorder

principally

(Joint Stip. at 4-7).

Agency
giving

to
more

“evaluate
weight

to

by

improperly

Social Security regulations

every

medical

evidence

20 C.F.R. § 404.1527(c).

5

analyzing

from

opinion
a

[it]

claimant’s

Where a treating or

1

2009) (quoting Thomas v. Barnhart, 278 F.3d 947, 956–57 (9th Cir.

2

2002)).

3

treating

4

physician when he gives specific, legitimate reasons for doing so,

5

and those reasons are supported by substantial record evidence.”

6

Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995), as amended (Apr.

7

9, 1996) (quoting Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir.

8

1995)).

9

constitute substantial evidence that justifies the rejection of the

10

opinion of either an examining physician or a treating physician.

11

Id.

“An ALJ may reject the testimony of an examining, but nonphysician,

in

favor

of

a

non-examining,

non-treating

The opinion of a non-examining physician cannot by itself

12
13
14

The

ALJ

discussed

Plaintiff’s

adjustment

disorder

in

following excerpt:

15
16

[Plaintiff’s]

17

adjustment disorder does not limit [Plaintiff’s] ability to

18

perform

19

nonsevere.

basic

medically

mental

determinable

work

activities

impairment

and

is

of

therefore

20
21

On August 18, 2012, Tanya Scurry, M.D., Board certified in

22

psychiatry and neurology, conducted a complete consultative

23

examination of [Plaintiff].

24

was pain all the time.

25

to drive, do some light chores, make sandwiches, help her

26

daughter with homework, and listen to the radio.

27

the

28

adjustment disorder with anxious mood.

examination,

Dr.

[Plaintiff’s] chief complaint

[Plaintiff] admitted she was able

Scurry

6

diagnosed

Based on

[Plaintiff]

with

Dr. Scurry opined

the

1

[Plaintiff]

2

functions.

was

moderately

limited

in

most

mental

3

*

4

*

*

5
6

The [ALJ] finds the [Plaintiff’s] medically determinable

7

mental impairment causes mild restriction in activities of

8

daily living; mild difficulties in social functioning; and

9

mild

difficulties

with

regard

to

concentration,

10

persistence, or pace, and has resulted in mild episodes of

11

decompensation which have been of extended duration in the

12

fourth area.

13

“paragraph C” criteria are satisfied and finds the evidence

14

fails

15

criteria

16

medically determinable mental impairment is nonsevere.

to

The [ALJ] has also considered whether the

establish
in

this

the
case.

presence

of

Accordingly,

the
the

“paragraph

C”

[plaintiff’s]

17
18

In determining there is no severe mental impairment, the

19

[ALJ] gives significant weight to the clinical findings of

20

the consultative examiner.

21

moderate

22

objective medical evidence, including Dr. Scurry’s report.

23

The objective findings noted from the examination fail to

24

reveal

25

abnormalities one would expect if [Plaintiff] were in fact

26

disabled.

27

household chores, read and listen to music, and help her

28

daughter.

mental

the

type

However, the [ALJ] finds the

limitations

of

to

significant

be

unsupported

clinical

and

by

the

laboratory

[Plaintiff] admitted she was able to drive, do

Dr. Scurry appeared to have relied quite heavily
7

1

on

2

provided by [Plaintiff], and seemed to uncritically accept

3

as true most, if not all, of what [Plaintiff] reported.

4

explained

5

reasons for questioning the reliability of [Plaintiff’s]

6

subjective complaints.

7

based on a single examination of [Plaintiff] and may have

8

been different if it was based on evaluation of [Plaintiff]

9

over a longer period of time.

the

subjective

elsewhere

report

in

of

this

symptoms

decision,

and

limitations

there

exist

As
good

Moreover, Dr. Scurry’s opinion is

10
11

The [ALJ] gives great weight to the State agency medical

12

consultants

who

13

nonsevere.

This opinion is consistent with the record.

14

[Plaintiff]

had

15

admitted activities also show her mental limitations were

16

mild.

found

[Plaintiff’s]

little

mental

health

mental

impairment

treatment.

Her

17
18

(AR at 20 (citations omitted)).

19
20

On

August

18,

2012,

Plaintiff

underwent

consultative

21

examination with Tanya Scurry, M.D.

22

that Plaintiff was an “adequate” historian and her chief complaint

23

was “pain all the time.”

24

of her present illness, past psychiatric history, medications, family

25

psychiatric history, past medical history, social history, education

26

history, habits, legal history, and employment history.

27

Plaintiff discussed her activities of daily living, noting that she

28

lived with family; her children assisted her with

(AR 243).

8

(AR 243-48).

a

Dr. Scurry noted

Plaintiff described the history

(AR 243-44).

self-dressing,

1

self-bathing, and personal hygiene; she could drive a car; she did

2

not engage in “[o]utside activities;” she could pay bills and handle

3

cash; she could go out alone; she had “good” relationships with

4

family and friends; she had “some difficulty” focusing attention; she

5

had

6

difficulty” making decisions; and, every day, she read, did “light

7

chores,” made sandwiches, helped her youngest daughter with homework,

8

and listened to the radio.

“difficulty”

completing

household

tasks;

she

had

“some

(AR 244-45).

9
10

Dr. Scurry conducted a mental examination, first observing that

11

Plaintiff had “fair” grooming and hygiene, was able to volunteer

12

information

13

retardation, appeared “genuine and truthful” with no evidence of

14

exaggeration or manipulation, and did not appear to be under the

15

influence of alcohol.

16

thought

17

“tangentiality or loosening of associations.”

18

also

19

delusional” with no “bizarre or psychotic” content or reports of

20

visual

21

characterized

22

“anxious, distractible and congruent with thought content.”

23

245).

24

hopelessness, helplessness or worthlessness.”

25

stated that Plaintiff’s speech was normal and clearly articulated,

26

Plaintiff

27

Plaintiff appeared to be “of at least average intelligence.”

28

246).

spontaneously,

processes

noted

or

that

was

(AR 245).

appeared

thoughts

hallucinations.

Plaintiff’s

mood

“mild”

psychomotor

Dr. Scurry noted that Plaintiff’s

“coherent

Plaintiff’s

auditory

experiencing

as

and

organized,”
(AR 245).

were

(AR

“stressed”

and

and

Dr.
her

no

Dr. Scurry

“relevant

245).

with

non-

Scurry

affect

as
(AR

Dr. Scurry noted that Plaintiff acknowledged “feelings of

was

alert

to

“time,

place,

9

(AR 245).

person,

and

Dr. Scurry

purpose,”

and
(AR

1
2

Dr. Scurry conducted several tests of Plaintiff’s memory, fund

3

of

4

ability to interpret a proverb, ability to articulate similarities

5

and differences, and insight and judgment.

6

(1) completed a “digit span six forward” with one error and three

7

backwards

8

green, sky) immediately and two/three items after five minutes and

9

couldn’t get the third word with a hint”; (3) could recall how

10

President Kennedy died; (4) correctly stated that 80 cents would be

11

received from a dollar if two oranges were bought at 10 cents each;

12

(5) could do simple calculations like “4 + 3 = 7,” spell “world”

13

forward and backward, and follow a conversation well; (6) replied

14

“the house is built with glass instead of foundation” when asked to

15

interpret

16

stones”; (7) stated that a table and chair were similar because both

17

were “sturdy” and had four legs, but were different because “one you

18

sit on and one you eat off”; and (8) stated that, if she found a

19

stamped addressed envelope on the ground she would put it in a

20

mailbox.

knowledge,

concentration

accurately;

the

(2)

proverb

and

was

ability

able

“[p]eople

in

to

to

perform

(AR 246).

“recall

glass

calculations,

three

houses

Plaintiff:

items

shouldn’t

(dog,

throw

(AR 246).

21
22

Dr. Scurry diagnosed Plaintiff with “adjustment disorder with

23

anxious mood.”

(AR 247).

24

described

25

overwhelmed,” but she also opined that Plaintiff had had difficulties

26

in the memory, fund of knowledge, and proverb sections of the mental

27

status

28

performance

herself

exam.
on

(AR
the

as

Dr. Scurry observed that Plaintiff had

“stressed”

247).
exam

Dr.

could

be
10

and

Scurry

appeared

stated

attributable

“anxious

that
to

her

and

Plaintiff’s
underlying

1

anxiety

2

alprazolam,

3

examination.

4

re-tested after being tapered off alprazolam, but a “better choice”

5

for her symptoms would be an anti-depressant to manage her anxiety.

6

(AR 247).

7

other medical problems would likely “go a long way” toward improving

8

her mood.

9

engage

disorder

in

which

not

being

managed

Plaintiff

(AR 247).

was

fully

taking

or

at

the

the

effects

time

of

of
the

Dr. Scurry opined that Plaintiff could be

Dr. Scurry also stated that resolution of Plaintiff’s

(AR 247).
gainful

Dr. Scurry stated that Plaintiff could not

employment

and

should

receive

“more

intensive

10

psychiatric and medical management” in order to return to work.

(AR

11

247).

12

carry out simple job instructions or perform work activities without

13

“special

14

“presentation and performance on the mental status exam,” Dr. Scurry

15

assessed

16

complex

17

maintain concentration and attention, associate with day-to-day work

18

activity,

19

consistent attendance.

Dr. Scurry assessed no limitations in Plaintiff’s ability to

or

additional

moderate

limitations

instructions,

accept

supervision,”

in

interact

instructions

but,

based

Plaintiff’s

with

co-workers

from

on

Plaintiff’s

ability
and

supervisors,

to
the

and

follow
public,

maintain

(AR 247-48).

20
21

During initial review, State agency medical consultants reported

22

that Plaintiff’s affective disorder was a medically determinable but

23

non-severe impairment resulting in mild limitations in maintaining

24

concentration, persistence, and pace and no limitations in any other

25

“paragraph B” criterion.

26

Dr.

27

reports, and the “totality of the evidence” did not support the

28

opinion.

Scurry’s

report

(AR 67).

(AR 63-64).

relied

“heavily”

The consultants stated that
on

Plaintiff’s

subjective

The consultants also stated that Dr. Scurry’s
11

1

report was based on a “snapshot” of Plaintiff’s functioning.

2

67).

3

(AR 74, 77-78).

(AR

The consultants’ findings were unchanged on reconsideration.

4

Remand

5

is

warranted.

the

8

“fail[ed] to reveal the type of significant clinical and laboratory

9

abnormalities one would expect if [Plaintiff] were in fact disabled.”

11

“inconsistent with the medical evidence” is in and of itself not

12

relevant in evaluating an ALJ’s reasons for rejecting a physician’s

13

opinion,

14

“boilerplate” language.

15

errs when he rejects a medical opinion or assigns it little weight

16

while

17

explanation

that

18

criticizing

it

19

substantive basis for his conclusion.”); cf. Reddick v. Chater, 157

20

F.3d

21

physician’s

22

reasons” supported by substantial evidence in the record; ALJ must

23

“do more than offer his conclusions”).

24

that

25

significant clinical and laboratory abnormalities one would expect if

26

[Plaintiff] were in fact disabled” is not specific, legitimate, or

27

supported by reference to substantial evidence, as the ALJ does not

28

provide any support for this conclusion or identify what “significant

doing

715,

Dr.

Ninth

nothing

725

Circuit

more

opinion

Scurry’s

than

ignoring

medical

boilerplate

(9th

cautioned

opinion

against

relying

is

on

See Garrison, 759 F.3d at 1012-13 (“[A]n ALJ

another

with

has

physician’s

were

(AR

the

a

limitations

10

and

that

the

assessed

“unsupported by the objective medical evidence” and the examination

statement

that

Scurry’s

7

a

stated

Dr.

limitations,

However,

first

rejecting

6

20).

ALJ

In

Cir.
without

opinion
language

1998)

(ALJ

providing

examination

“fail[ed]

12

it,
is

more

that

may

asserting

persuasive,

fails

not

“specific

without

to

reject
and

offer

or
a

treating
legitimate

The ALJ’s related finding
to

reveal

the

type

of

1

clinical and laboratory abnormalities” one would expect if Plaintiff

2

were disabled or her mental impairment were severe.

3

Colvin, 202 F.Supp.3d 1119, 1134 (N.D. Cal. 2016) (identical language

4

appeared to be improper “speculation” by ALJ and ALJ could not reject

5

an evaluating doctor’s opinion based on “his own personal medical

6

conjecture”).

See Bennett v.

Next, the ALJ’s assertion that Dr. Scurry relied “quite heavily”

7
8

on Plaintiff’s reports is belied by the record.

9

asked Plaintiff about her medical history and activities of daily

10

living, Dr. Scurry’s diagnosis was based on Plaintiff’s performance

11

on

12

“difficulties in the memory, fund of knowledge and proverb sections.”

13

(AR 247).

14

assessment

15

complaints.

16

2014) (“[W]hen an opinion is not more heavily based on a patient’s

17

self-reports than on clinical observations, there is no evidentiary

18

basis for rejecting the opinion . . . The ALJ offered no basis for

19

his

20

Ghanim’s self-reports, and substantial evidence does not support such

21

a conclusion.”); Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199-

22

1200 (9th Cir. 2008) (“[A]n ALJ does not provide clear and convincing

23

reasons for rejecting an examining physician’s opinion by questioning

24

the credibility of the patient’s complaints where the doctor does not

25

discredit those complaints and supports his ultimate opinion with his

26

own observations . . . There is nothing in the record to suggest that

27

Dr. Randhawa disbelieved Ryan’s description of her symptoms, or that

28

Dr. Randhawa relied on those descriptions more heavily than his own

several

mental

status

tests

and

Although Dr. Scurry

specifically

on

Plaintiff’s

The ALJ erred insofar as he discredited Dr. Scurry’s
as

based

predominantly

on

Plaintiff’s

own

subjective

See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir.

conclusion

that

these

opinions

13

were

based

more

heavily

on

1

clinical

2

incapable of maintaining a regular work schedule.”); Davis v. Colvin,

3

2015

4

characterization, there is no indication in the record that Dr. Kim

5

‘accepted uncritically as true most, if not all, of what the claimant

6

reported.’”).2

WL

observations

5730581

at

in

*9

reaching

(D.

the

Ariz.

conclusion

2015)

that

(“Contrary

to

Ryan

the

was

ALJ’s

7
8

The

9

Scurry’s

ALJ

also

rejected

examination

was

Dr.

Scurry’s

based

on

limitations

“a

single

because

Dr.

examination

of

10

[Plaintiff] and may have been different if it was based on evaluation

11

of [Plaintiff] over a longer period of time.”

12

provided

13

examination “may have” shown, and this speculative finding is not

14

supported by specific and legitimate reasons.

15

suspect given that the ALJ rejected Dr. Scurry’s assessment in favor

16

of the assessment of non-examining State agency medical consultants.

17

(AR 20); see Lester, 81 F.3d at 832 (“[T]he ALJ noted that Dr.

18

Taylor’s

19

claimant.

20

Taylor’s opinion than to the opinion of a treating physician, it is

21

not a reason to give preference to the opinion of a doctor who has

no

explanation

conclusions

were

for

his

based

finding

on

(AR 20).

regarding

‘limited

what

The ALJ
further

This rationale is also

observation’

of

the

While this would be a reason to give less weight to Dr.

22
2

23
24
25
26
27
28

It is also unclear which of the activities cited by the ALJ
– driving, doing household chores, reading and listening to music,
and helping with homework – were inconsistent with moderate
limitations in Plaintiff’s ability to function in the workplace on a
sustained basis, particularly as Plaintiff has also reported that she
performed many of these activities with assistance and slowly or with
substantial pain. (See generally AR 40-51, 188-94); cf. Reddick, 157
F.3d at 722 (ALJ erred by “not fully accounting for the context of
materials or all parts of the testimony and reports,” resulting in
paraphrasing of record material that was “not entirely accurate
regarding the content or tone of the record”).
14

1

never examined the claimant.” (emphasis in original)).

2

when an ambiguity exists, the ALJ has the duty and the tools to

3

develop the record.

4

Cir. 2001) (ambiguous evidence relevant to a finding of disability

5

triggers the ALJ’s duty to develop the record).

Moreover,

Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th

6
7

Additionally, the ALJ credited the finding of nonseverity by

8

State agency medical consultants rather than Dr. Scurry’s findings

9

because Plaintiff had “little mental health treatment.”

(AR 20).

10

However, the Ninth Circuit has noted that “it is a questionable

11

practice to chastise one with a mental impairment for the exercise of

12

poor judgment in seeking rehabilitation,” and “the fact that [a]

13

claimant may be one of millions of people who did not seek treatment

14

for a mental disorder until late in the day is not a substantial

15

basis on which to conclude that [an examining physician’s] assessment

16

of [the] claimant’s condition is inaccurate.”

17

F.3d 1462, 1465 (9th Cir. 1996).

18

the

19

alprazolam,

20

disorders.

21

2014).

time

of
or

Dr.

Scurry’s

Xanax,

which

The Court also observes that, at

examination,
is

Nguyen v. Chater, 100

used

to

Plaintiff
treat

anxiety

was
and

taking
panic

Arrington v. Colvin, 2014 WL 2586237 at *4 n.6 (W.D. Va.

22
23

Therefore, the reasons the ALJ provided for discrediting Dr.

24

Scurry’s findings were not specific, legitimate, and supported by

25

substantial record evidence.

26
27
28
15

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 v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th

6

Cir. 2006)).

7

‘inconsequential to the ultimate nondisability determination.’”

8

(citing Carmickle v. Comm’r Soc. Sec. Admin., 466 F.3d 880, 885 (9th

9

Cir. 2006)).

Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)

Generally, “an ALJ’s error is harmless where it is
Id.

10
11

The Court cannot conclude that the ALJ’s error was harmless.

12

The ALJ’s rejection of the limitations assessed by Dr. Scurry and

13

acceptance of the findings of State agency consultants were central

14

to

15

nonsevere, i.e., have “no more than a minimal effect on [Plaintiff’s]

16

ability

17

Plaintiff’s mental impairments is directly relevant to assessing her

18

RFC,

19

contributing to the final . . . decision about disability.”

20

McCawley v. Astrue, 423 F. App’x 687, 689 (9th Cir. 2011) (quoting

21

SSR 96—5p).

22

and the RFC determination was critical to the ALJ’s determination

23

that

24

limitations.

25

determine that the ALJ’s errors are “inconsequential to the ultimate

26

disability determination,” the errors cannot be deemed harmless.

27

Carmickle, 466 F.3d at 885.

the

ALJ’s

to

and

finding

work.”

a

there

that

Webb,

claimant’s

Plaintiff’s

433

RFC

F.3d

“may

at

be

mental

686-87.

the

most

impairments

The

were

severity

critical

of

finding
See

Here, Plaintiff’s RFC included no mental limitations,

was

work

that

Plaintiff

(AR 21, 25-26).

could

perform

despite

her

Therefore, because the Court cannot

28
16

See

1

C.

Remand Is Warranted

2
3

The decision whether to remand for further proceedings or order

4

an

immediate

award

of

benefits

is

within

the

district

court’s

5

discretion.

6

Where no useful purpose would be served by remand, or where the

7

record is fully developed, it is appropriate to direct an immediate

8

award of benefits.

9

for

Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000).

further

Id. at 1179 (“[T]he decision of whether to remand

proceedings

turns

upon

the

likely

utility

of

such

10

proceedings.”).

However, where the circumstances of the case suggest

11

that further administrative review could remedy the Commissioner’s

12

errors, remand is appropriate.

13

(9th Cir. 2011); Harman, 211 F.3d at 1179-81.

McLeod v. Astrue, 640 F.3d 881, 888

14
15

Here, the Court remands because the ALJ did not analyze Dr.

16

Scurry’s opinion in accordance with applicable law, which casts into

17

doubt

18

Plaintiff’s RFC.

19

in re-evaluating this case, the ALJ would necessarily be required to

20

accept

21

“severe,”

22

appropriate.

the

ALJ’s

Dr.

nonseverity

and

his

formulation

of

The record does not affirmatively establish that,

Scurry’s
or

finding

find

opinion,
Plaintiff

find

Plaintiff’s

disabled.

mental

Remand

is

impairments
therefore

23
24

The Court has not reached issues not discussed supra except to

25

determine that reversal with a directive for the immediate payment of

26

benefits would be inappropriate at this time.

27

issues addressed in this order, the ALJ should consider on remand any

28

other issues raised by Plaintiff, if necessary.
17

In addition to the

1

VI.

CONCLUSION

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
10
11

Dated: May 9, 2017.
_____________/s/______________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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24
25
26
27
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