Luz I. Rodriguez v. Carolyn W. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

LUZ I. RODRIGUEZ,

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
____________________________________)

NO. ED CV 16-1696-E

MEMORANDUM OPINION
AND ORDER OF REMAND

17
18

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

19

HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary

20

judgment are denied, and this matter is remanded for further

21

administrative action consistent with this Opinion.

22
23

PROCEEDINGS

24
25

Plaintiff filed a complaint on August 5, 2016, seeking review of

26

the Commissioner’s denial of benefits.

The parties consented to

27

proceed before a United States Magistrate Judge on January 21, 2017.

28

Plaintiff filed a motion for summary judgment on January 27, 2017.

1

Defendant filed a motion for summary judgment on March 27, 2017.

The

2

Court has taken the motions under submission without oral argument.

3

See L.R. 7-15; “Order,” filed August 9, 2016.

4
5

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

6
7

Plaintiff asserts disability since early April of 2010, based on

8

alleged physical and mental impairments (Administrative Record

9

(“A.R.”) 179-82, 195-96).

An Administrative Law Judge (“ALJ”)

10

reviewed the record and heard testimony from Plaintiff and a

11

vocational expert (A.R. 28-38, 42-66).

12

has severe physical impairments which limit her to the following

13

residual functional capacity:

The ALJ found that Plaintiff

14
15

[Plaintiff can] perform sedentary work as defined in 20

16

C.F.R. 404.1567(a)1 except that [Plaintiff] can occasionally

17

climb, balance, stoop, kneel, crouch, and crawl; never

18

[climb] ladders, ropes, or scaffolds; frequently perform

19
1

20
21
22
23
24
25
26
27
28

“Sedentary work involves lifting no more than 10 pounds
at a time and occasionally lifting or carrying articles. . . .
Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other
sedentary criteria are met.” See 20 C.F.R. § 404.1567(a).
“‘Occasionally’ means occurring from very little up to one-third
the time. Since being on one’s feet is required ‘occasionally’
at the sedentary level of exertion, periods of standing or
walking should generally total no more than about [two] hours of
an [eight]-hour workday, and sitting should generally total
approximately [six] hours of an [eight]-hour workday.”
See Social Security Ruling (“SSR”) 83-10 (further defining
sedentary work). Social Security rulings are “binding on ALJs.”
Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990).
2

1

reaching, fingering, and handling including overhead

2

reaching; and avoid concentrated exposure to cold and

3

vibration; and avoid moderate exposure to industrial

4

hazards.

5
6

(A.R. 32).

7

little or no weight to the contrary opinions of the treating and

8

examining physicians of record (A.R. 33-35).

9

the opinions of the non-examining state agency physicians (A.R. 33-

10

In finding Plaintiff retains this capacity, the ALJ gave

The ALJ did not mention

35).

11
12

The vocational expert testified that a person with the residual

13

functional capacity defined by the ALJ could perform Plaintiff’s past

14

relevant work (A.R. 53-54).

15

finding Plaintiff not disabled (A.R. 36).

16

considered additional evidence but denied review (A.R. 1-5; see

17

also A.R. 1830-34 (new opinion evidence post-dating the ALJ’s adverse

18

decision)).

The ALJ relied on this testimony in
The Appeals Council

19
20

STANDARD OF REVIEW

21
22

Under 42 U.S.C. section 405(g), this Court reviews the

23

Administration’s decision to determine if: (1) the Administration’s

24

findings are supported by substantial evidence; and (2) the

25

Administration used correct legal standards.

26

Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

27

499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner,

28

682 F.3d 1157, 1161 (9th Cir. 2012).
3

See Carmickle v.

Substantial evidence is “such

1

relevant evidence as a reasonable mind might accept as adequate to

2

support a conclusion.”

3

(1971) (citation and quotations omitted); see also Widmark v.

4

Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

Richardson v. Perales, 402 U.S. 389, 401

5
6

If the evidence can support either outcome, the court may

7

not substitute its judgment for that of the ALJ.

8

Commissioner’s decision cannot be affirmed simply by

9

isolating a specific quantum of supporting evidence.

10

Rather, a court must consider the record as a whole,

11

weighing both evidence that supports and evidence that

12

detracts from the [administrative] conclusion.

But the

13
14

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and

15

quotations omitted).

16
17

Where, as here, the Appeals Council considered additional

18

evidence but denied review, the additional evidence becomes part of

19

the record for purposes of the Court's analysis.

20

Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers

21

new evidence in deciding whether to review a decision of the ALJ, that

22

evidence becomes part of the administrative record, which the district

23

court must consider when reviewing the Commissioner's final decision

24

for substantial evidence”; expressly adopting Ramirez v. Shalala, 8

25

F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d

26

1228, 1231 (2011) (courts may consider evidence presented for the

27

first time to the Appeals Council “to determine whether, in light of

28

the record as a whole, the ALJ’s decision was supported by substantial
4

See Brewes v.

1

evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953,

2

957 n.7 (9th Cir. 1993) (“the Appeals Council considered this

3

information and it became part of the record we are required to review

4

as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).

5
6

DISCUSSION

7
8
9

I.

On the Present Record, Substantial Evidence Does Not Support the
ALJ’s Residual Functional Capacity Determination.

10
11

The ALJ’s decision does not identify any medical opinion on which

12

the ALJ may have relied in determining Plaintiff’s residual functional

13

capacity.

14

evidence for the particulars of the residual functional capacity

15

determination, the determination cannot stand.

16

the ALJ’s own lay opinion to determine the severity of medically

17

determinable impairments.

18

Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998); Rohan v. Chater, 98

19

F.3d 966, 970 (7th Cir. 1996); Day v. Weinberger, 522 F.2d 1154, 1156

20

(9th Cir. 1975).

If the ALJ lacked any support in the medical opinion

An ALJ cannot rely on

See Tackett v. Apfel, 180 F.3d at 1102-03;

21
22

The ALJ may have derived the particulars of the residual

23

functional capacity determination from the opinions of the non-

24

examining state agency physicians.

25

determination) with A.R. 76-78 (May 21, 2013 opinion finding Plaintiff

26

capable of light work with restrictions) and A.R. 94-96 (January 7,

27

2014 opinion finding same).

28

residual functional capacity determination parrot the state agency

Compare A.R. 32 (ALJ’s

The nonexertional limitations in the

5

1

physicians’ opinions, except that the ALJ found Plaintiff capable of

2

frequent overhead reaching, whereas the state agency physicians

3

limited Plaintiff to occasional overhead reaching (A.R. 32, 77-78,

4

95).

5

opinions, however, the opinions could not constitute substantial

6

evidence to support the ALJ’s decision.

7

nonexamining physician cannot by itself constitute substantial

8

evidence that justifies the rejection of the opinion of either an

9

examining physician or a treating physician.”

To the extent the ALJ relied on the non-examining physicians’

“The opinion of a

Lester v. Chater, 81

10

F.3d 821, 831 (9th Cir. 1995) (emphasis in original); see also Orn v.

11

Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (“When [a nontreating]

12

physician relies on the same clinical findings as a treating

13

physician, but differs only in his or her conclusions, the conclusions

14

of the [nontreating] physician are not ‘substantial evidence.’”);

15

Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) (“The

16

nonexamining physicians’ conclusion, with nothing more, does not

17

constitute substantial evidence, particularly in view of the

18

conflicting observations, opinions, and conclusions of an examining

19

physician”).

20
21

Moreover, a treating physician’s conclusions “must be given

22

substantial weight.”

Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.

23

1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the

24

ALJ must give sufficient weight to the subjective aspects of a

25

doctor’s opinion. . . .

26

that of a treating physician”) (citation omitted); see also Orn v.

27

Astrue, 495 F.3d at 631-33 (discussing deference owed to treating

28

physicians’ opinions).

This is especially true when the opinion is

Even where the treating physician’s opinions
6

1

are contradicted, as here, “if the ALJ wishes to disregard the

2

opinion[s] of the treating physician he . . . must make findings

3

setting forth specific, legitimate reasons for doing so that are based

4

on substantial evidence in the record.”

5

643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted);

6

see Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ may disregard the

7

treating physician’s opinion, but only by setting forth specific,

8

legitimate reasons for doing so, and this decision must itself be

9

based on substantial evidence”) (citation and quotations omitted).2

Winans v. Bowen, 853 F.2d

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2

The Court need not and does not determine whether the
ALJ stated legally sufficient reasons to discount the opinions of
treating physicians Ahmed and Anabi. However, on remand, the ALJ
should define more clearly and more specifically the reasons why
the ALJ discounts the opinions of each of these treating
physicians (if discounting occurs again on remand); see Kinzer v.
Colvin, 567 Fed. App’x 529, 530 (9th Cir. 2014) (ALJ’s statements
that treating physicians’ opinions “contrasted sharply with the
other evidence of record” and were “not well supported by the
. . . other objective findings in the case record” held
insufficient); McAllister v. Sullivan, 888 F.2d 599, 602 (9th
Cir. 1989) (“broad and vague” reasons for rejecting treating
physician’s opinions do not suffice); Embrey v. Bowen, 849 F.2d
at 421 (“To say that the medical opinions are not supported by
sufficient objective findings or are contrary to the preponderant
conclusions mandated by the objective findings does not achieve
the level of specificity our prior cases have required. . . .”);
compare Wilson v. Colvin, 583 Fed. App’x 649, 651 (9th Cir. 2014)
(upholding rejection of treating physician’s opinion where the
ALJ determined that the opinion was not corroborated by any other
medical opinion, was inconsistent with the rest of the record,
and relied heavily on the claimant’s own subjective statements
which the ALJ found incredible); see also Nash v. Colvin, 2016 WL
67677, at *7 (E.D. Cal. Jan. 5, 2016) (“the ALJ may not disregard
a physician’s medical opinion simply because it was initially
elicited in a state workers’ compensation proceeding. . .”)
(citations and quotations omitted); Casillas v. Colvin, 2015 WL
6553414, at *3 (C.D. Cal. Oct. 29, 2015) (same); Franco v.
Astrue, 2012 WL 3638609, at *10 (C.D. Cal. Aug. 23, 2012) (same).
To the extent the opinions of other medical sources contradicted
(continued...)
7

1

The vocational expert testified that a person with certain of the

2

limitations the treating and examining physicians found to exist would

3

not be able to perform any work.

4

expert testimony) with A.R. 1447 (Dr. Anabi’s opinion that Plaintiff

5

would miss work more than three times per month due to her condition),

6

A.R. 1799-1800 (Dr. Anabi’s opinion that Plaintiff’s pain would

7

interfere with her concentration frequently (i.e., from 1/3 to 2/3 of

8

an eight hour day), that she would have to take unscheduled breaks

9

every hour for 30 to 60 minutes, and that she would miss more than

Compare A.R. 62-63 (vocational

10

three days of work per month due to her symptoms), and A.R. 1833-34

11

(Dr. Qazi’s opinion, submitted only to the Appeals Council, finding

12

limitations similar to the limitations found by Dr. Anabi).

13

of the vocational expert’s testimony, the Court is unable to deem the

14

ALJ’s errors in the present case to have been harmless.

15

Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (an error “is harmless

16

where it is inconsequential to the ultimate non-disability

17

determination”) (citations and quotations omitted).

In light

See Molina v.

18
19

II.

Remand for Further Administrative Proceedings is Appropriate.

20
21

Remand is appropriate because the circumstances of this case

22

suggest that further administrative review could remedy the ALJ’s

23

errors.

McLeod v. Astrue, 640 F.3d 881, 88 (9th Cir. 2011); see also

24
25
26
27
28

2

(...continued)
the opinions of the treating physicians, such contradiction
triggers rather than satisfies the requirement of stating
“specific, legitimate reasons.” See, e.g., Valentine v.
Commissioner, 574 F.3d 685, 692 (9th Cir. 2007); Orn v. Astrue,
495 F.3d at 631-33.
8

1

INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an

2

administrative determination, the proper course is remand for

3

additional agency investigation or explanation, except in rare

4

circumstances); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2016)

5

(“Unless the district court concludes that further administrative

6

proceedings would serve no useful purpose, it may not remand with a

7

direction to provide benefits”); Treichler v. Commissioner, 775 F.3d

8

1090, 1101 n.5 (9th Cir. 2014) (remand for further administrative

9

proceedings is the proper remedy “in all but the rarest cases”);

10

Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (court will

11

credit-as-true medical opinion evidence only where, inter alia, “the

12

record has been fully developed and further administrative proceedings

13

would serve no useful purpose”); Harman v. Apfel, 211 F.3d 1172, 1180-

14

81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further

15

proceedings rather than for the immediate payment of benefits is

16

appropriate where there are “sufficient unanswered questions in the

17

record”).

18
19

There remain significant unanswered questions in the present

20

record.

Cf. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015)

21

(remanding for further proceedings to allow the ALJ to “comment on”

22

the treating physician’s opinion).

23

ALJ would be required to find Plaintiff disabled for the entire

24

claimed period of disability even if the treating physicians’ opinions

25

were fully credited.

26

Cir. 2010).

27

///

28

///

Moreover, it is not clear that the

See Luna v. Astrue, 623 F.3d 1032, 1035 (9th

9

1

CONCLUSION

2
3

For all of the foregoing reasons,3 Plaintiff’s and Defendant’s

4

motions for summary judgment are denied and this matter is remanded

5

for further administrative action consistent with this Opinion.

6
7

LET JUDGMENT BE ENTERED ACCORDINGLY.

8
9

DATED: April 20, 2017.

10
11
/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3

27
28

The Court has not reached any other issue raised by
Plaintiff except insofar as to determine that reversal with a
directive for the immediate payment of benefits would not be
appropriate at this time.
10