Kristan L. Banales v. Carolyn W. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Having reviewed the entire file, the court reverses and remands the decision of the Commissioner for further proceedings consistent with this opinion. IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded for further proceedings consistent with this opinion. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KRISTAN BANALES, 12 Plaintiff, 13 14 15 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) No. EDCV 16-1247 AGR MEMORANDUM OPINION AND ORDER Plaintiff Banales filed this action on June 13, 2016. Pursuant to 28 U.S.C. § 18 636(c), the parties consented to proceed before the magistrate judge. (Dkt. Nos. 11, 19 12.) On January 31, 2017, the parties filed a Joint Stipulation (“JS”) that addressed the 20 disputed issue. The court has taken the matter under submission without oral 21 argument. 22 23 24 25 26 27 28 Having reviewed the entire file, the court reverses and remands the decision of the Commissioner for further proceedings consistent with this opinion. 1 I. 2 PROCEDURAL BACKGROUND 3 Banales filed applications for disability insurance benefits and supplemental 4 security income benefits in July 2012. In both applications, she alleged an onset date of 5 April 1, 2011. Administrative Record (“AR”) 18. The applications were denied initially 6 and on reconsideration. AR 94-95, 122-23. Banales requested a hearing before an 7 Administrative Law Judge (“ALJ”). On October 14, 2014, the ALJ conducted a hearing 8 at which Banales and a vocational expert (“VE”) testified. AR 32-60. On December 29, 9 2014, the ALJ issued a decision denying benefits. AR 15-28. On April 14, 2016, the 10 Appeals Council denied review. AR 1-5. This action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court has authority to review the 14 Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not 15 supported by substantial evidence, or if it is based upon the application of improper 16 legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 17 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 “Substantial evidence” means “more than a mere scintilla but less than a 19 preponderance – it is such relevant evidence that a reasonable mind might accept as 20 adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether 21 substantial evidence exists to support the Commissioner’s decision, the court examines 22 the administrative record as a whole, considering adverse as well as supporting 23 evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than 24 one rational interpretation, the court must defer to the Commissioner’s decision. 25 Moncada, 60 F.3d at 523. 26 27 28 2 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, “only if his 5 physical or mental impairment or impairments are of such severity that he is not only 6 unable to do his previous work but cannot, considering his age, education, and work 7 experience, engage in any other kind of substantial gainful work which exists in the 8 national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (citation and 9 quotation marks omitted). 10 B. The ALJ’s Findings 11 The ALJ found that Banales met the insured status requirements through 12 December 31, 2015. AR 20. Following the five-step sequential analysis applicable to 13 disability determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),1 14 the ALJ found that Banales had the severe impairments of bipolar disorder; anxiety 15 disorder; and degenerative disc disease post motor vehicle accident/surgery. AR 20. 16 She had the residual functional capacity (“RFC”) to perform light work except that she 17 cannot climb ladders, ropes or scaffolds; cannot work with hazards; and cannot have 18 concentrated exposure to extreme cold and vibration. She can occasionally perform 19 postural activities; is limited to non-public unskilled work involving simple repetitive 20 tasks; can have minimal interaction with coworkers and supervisors; must work in a 21 habituated work setting and must perform work that is not fast-paced. AR 22. She was 22 unable to perform any past relevant work, but there were jobs that existed in significant 23 numbers in the national economy that she could perform such as small products 24 25 26 27 28 1 The five-step sequential analysis examines whether the claimant engaged in substantial gainful activity, whether the claimant’s impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his or her past relevant work, and whether the claimant is able to do any other work. Lounsburry, 468 F.3d at 1114. 3 1 assembler, inspector/hand packager and assembler, plastic hospital products. AR 26- 2 28. 3 4 C. Examining Physician An examining physician’s opinion constitutes substantial evidence when, as 5 here, it is based on independent clinical findings. Orn v. Astrue, 495 F.3d 625, 632 (9th 6 Cir. 2007). When an examining physician's opinion is contradicted, “it may be rejected 7 for ‘specific and legitimate reasons that are supported by substantial evidence in the 8 record.’” Carmickle v. Comm'r, 533 F.3d 1155, 1164 (9th Cir. 2008) (citation omitted). 9 “‘The opinion of a nonexamining physician cannot by itself constitute substantial 10 evidence that justifies the rejection of the opinion of either an examining physician or a 11 treating physician.’” Ryan v. Comm’r, 528 F.3d 1194, 1202 (9th Cir. 2008) (citation 12 omitted) (emphasis omitted). However, a non-examining physician’s opinion may serve 13 as substantial evidence when it is supported by other evidence in the record and is 14 consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 15 Dr. Tomilowitz performed a complete mental evaluation of Banales on December 16 27, 2012. AR 381-86. Based on the mental status examination, Dr. Tomilowitz opined 17 that her attention and concentration appeared within normal limits, her speech was 18 clear and coherent, and she put forth good effort. She appeared depressed and 19 anxious, and her affect was blunted. She was not tearful. She had no psychosis, 20 delusions or tangential thinking. Her thought processes were coherent and organized, 21 and her thought content was relevant and non-delusional. AR 383. In terms of 22 concentraton, she could perform serial threes and sevens. Her immediate memory 23 “showed some impairment. [She] was able to repeat four digits forward and backward. 24 The claimant could recall three items (House, Ball, Chair) immediately but not after five 25 minutes.” AR 384. Her judgment and reasoning were unimpaired. Id. 26 27 28 4 Dr. Tomilowitz diagnosed dysthymia and generalized anxiety disorder, and 1 2 assessed a Global Assessment of Functioning (GAF) score of 55.2 AR 384-85. She 3 opined that Banales was able to understand, remember and carry out simple one or 4 two-step jobs. She had moderate impairment of her ability to relate and interact with 5 coworkers and the public; her ability to maintain concentration and attention, 6 persistence and pace; and her ability to maintain regular attendance and perform work 7 activities on a consistent basis. AR 385-86. She was unimpaired in her ability to accept 8 instruction from supervisors but would require additional supervision due to vegetative 9 symptoms of dysthymia. AR 386. Unlike major depressive disorder, dysthymia “is 10 characterized by chronic, less severe depressive symptoms that have been present for 11 many years.” DSM-IV-TR 379. The state agency review physician opined in January 2013 that Dr. Tomilowitz’s 12 13 functional assessment was more severe than necessary based on objective data but 14 agreed that Banales could understand, remember and carry out a two-step command 15 involving simple instructions and maintain concentration, persistence and pace in such 16 an environment. AR 70, 73-75. 17 The ALJ acknowledged Dr. Tomilowitz’s opinion, including the limitation to 18 “simple, one- or two-step instructions.” AR 25. The ALJ also acknowledged that 19 Banales had moderate restrictions in activities of daily living, social functioning and 20 maintaining concentration, persistence or pace. AR 21. 21 The ALJ’s decision does not expressly discount the opinions of Dr. Tomilowitz or 22 the state agency review physician. Nevertheless, the ALJ did not include a limitation to 23 two-step instructions. Instead, the ALJ limited Banales to “simple repetitive tasks” and 24 found, based on the VE’s testimony, that Banales was capable of performing the 25 26 27 28 2 A GAF score of 51-60 indicates moderate symptoms “(e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV-TR”) 34. 5 1 representative jobs of small products assembler; inspector, hand packager; and 2 assembler, plastic hospital products. AR 22, 27-28. According to the Dictionary of 3 Occupational Titles (DOT), these three jobs require Reasoning Level Two. DOT § 4 706.684-022 (small products assembler), § 559.687-074 (inspector/hand packager), § 5 712.687-010 (assembler, plastic hospital products). Although a limitation to simple 6 repetitive tasks may be consistent with Reasoning Level Two, Zavalin v. Colvin, 778 7 F.3d 842, 847 (9th Cir. 2015), a limitation to two-step instructions may not be consistent 8 with Reasoning Level Two. 9 In Rounds v. Comm’r SSA, 807 F.3d 996 (9th Cir. 2015), the Ninth Circuit 10 discussed the six “Reasoning Levels that range from Level One (simplest) to Level Six 11 (most complex).” Id. at 1002. Levels One and Two state: 12 Level 1: Apply commonsense understanding to carry out simple one- or 13 two-step instructions. Deal with standardized situations with occasional or 14 no variables in or from these situations encountered on the job. 15 Level 2: Apply commonsense understanding to carry out detailed but 16 uninvolved written or oral instructions. Deal with problems involving a few 17 concrete variables in or from standardized situations. 18 Id. at 1002-03 (citation omitted). 19 In Rounds, the ALJ found that the claimant was limited to, among other things, 20 “one to two step tasks.” Id. at 1001. Based on the vocational expert’s testimony, the 21 ALJ concluded that the claimant was capable of performing three representative jobs 22 that required Reasoning Level Two. Id. at 1002. The Ninth Circuit found an apparent 23 conflict between the claimant’s residual functional capacity and the demands of 24 Reasoning Level Two. Id. at 1003. Because the ALJ had not recognized the apparent 25 conflict, the ALJ had not asked the VE to explain the conflict. The Ninth Circuit 26 remanded the matter for further proceedings. Id. at 1003-04. 27 28 6 1 Here, in contrast to Rounds, the issue is whether the ALJ articulated specific and 2 legitimate reasons to discount the opinions of Dr. Tomilowitz and the state agency 3 review physician. The ALJ did not articulate any reasons for doing so, and the court 4 can discern none from the decision. The court “‘cannot affirm the decision of an agency 5 on a ground that the agency did not invoke in making its decision.’” Id. at 1004 (citation 6 omitted). Remand is appropriate. Id. 7 IV. 8 ORDER 9 10 IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded for further proceedings consistent with this opinion. 11 12 13 DATED: February 16, 2017 ALICIA G. ROSENBERG United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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