Bradley J Sullivan v. Carolyn W. Colvin

Filing 24

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) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION

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) Case No. EDCV 16-1716 AS
)
) MEMORANDUM OPINION AND
)
) ORDER OF REMAND
)
)
)
)
)
)
)

BRADLEY J. SULLIVAN,

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Plaintiff,
v.

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

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

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ORDERED

that

this

matter

is

remanded

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for

further

administrative

action consistent with this Opinion.

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PROCEEDINGS

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On August 8, 2016, Bradley J. Sullivan (“Plaintiff”) filed a

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Complaint pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking

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Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for Acting Commissioner Carolyn W.
Colvin as the defendant in this suit. See 42 U.S.C. § 205(g).
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review of the Commissioner’s denial of Plaintiff’s application for

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Disability Insurance Benefits.

(Docket Entry No. 1).

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24,

Answer

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Certified Administrative Record (“AR”).

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The

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Magistrate Judge.

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

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their respective positions on Plaintiff’s claim.

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23).

2017,

Defendant

parties

have

filed

an

consented

to

to

the

On January

Complaint

and

the

(Docket Entry Nos. 21-22).

proceed

before

(Docket Entry Nos. 14, 16).

a

United

States

On April 17, 2017,

(Docket Entry No.

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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On

December

12,

2012,

Plaintiff,

formerly

employed

as

a

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chiropractor, (see AR 34-35), filed an application for Disability

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Insurance Benefits, alleging disability beginning on June 1, 2008.

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(AR 162-63).

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(“ALJ”), Mark B. Greenberg, heard testimony from Plaintiff, medical

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expert John Morse, and vocational expert Luis Mas.

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March 24, 2015, the ALJ denied Plaintiff’s application in a written

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decision.

On February 3, 2015, the Administrative Law Judge

(AR 25-55).

On

(See AR 9-20).

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

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case.

At

step

one,

the

ALJ

determined

that

Plaintiff

had

not

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engaged in substantial gainful activity between the alleged onset

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date of June 1, 2008, and the date last insured of March 31, 2014.

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(AR 11).

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insured, Plaintiff had the following severe impairments: diabetes

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mellitus,

At step two, the ALJ found that, through the date last

hepatitis,

kidney

disease,
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degenerative

disc

1

disease/degenerative

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neuropathy, obesity, depression, and anxiety.

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three,

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combination of impairments did not meet or equal a Listing found in

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

the

ALJ

joint

determined

disease,

that

obstructive

sleep

(AR 11-12).

Plaintiff’s

apnea,
At step

impairments

or

(AR 12-13).

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Before proceeding to step four, the ALJ found that Plaintiff

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had the residual functional capacity (“RFC”)2 to do light work3, with

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the following exceptions: he can frequently climb ramps and stairs;

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occasionally climb ladders, ropes, or scaffolds; perform all other

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postural activities on a frequent basis; and is limited to semi-

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skilled work4, with no ability for fast-paced work.

(AR 13-18).

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At step four, the ALJ determined that Plaintiff was not able to

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perform his past relevant work as a chiropractor.

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five, the ALJ found that, considering Plaintiff’s age, education,

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(AR 18).

At step

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).

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“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10
pounds.” 20 C.F.R. § 404.1567(b).
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“Semi-skilled work is work which needs some skills but does
not require doing the more complex work duties.
Semi-skilled jobs
may require alertness and close attention to watching machine
processes;
or
inspecting,
testing
or
otherwise
looking
for
irregularities;
or
tending
or
guarding
equipment,
property,
materials, or persons against loss, damage or injury; or other types
of activities which are similarly less complex than skilled work,
but more complex than unskilled work.
A job may be classified as
semi-skilled where coordination and dexterity are necessary, as when
hands or feet must be moved quickly to do repetitive tasks.”
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C.F.R. § 404.1568.
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work experience, and RFC, there were jobs existing in significant

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numbers

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including

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general office clerk (DOT 219.362-010), and office assistant (DOT

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235.462-010).

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Plaintiff was not disabled within the meaning of the Social Security

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Act.

in

the

national

management

economy

aide

in

(AR 19-20).

that

social

Plaintiff

services

could

(DOT

perform,

195.367-014),

Consequently, the ALJ concluded that

(AR 20).

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Plaintiff requested that the Appeals Council review the ALJ’s

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Decision, which was denied on July 11, 2016.

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Decision

then

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allowing

this

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405(g), 1383(c).

became
Court

the

to

final

review

decision

the

(AR 1-5).
of

The ALJ’s

Commissioner,

See

decision.

the

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U.S.C.

§§

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STANDARD OF REVIEW

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The Court reviews the ALJ’s decision to determine if it is free

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of legal error and supported by substantial evidence.

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Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).

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“Substantial evidence” is more than a mere scintilla, but less than

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a preponderance.

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2014).

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finding, “a court must consider the record as a whole, weighing both

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evidence

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[Commissioner’s] conclusion.”

Aukland v. Massanari, 257 F.3d 1033,

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1035

a

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reasonably

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conclusion, [a court] may not substitute [its] judgment for that of

(9th

To

Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.

determine

that

Cir.

See Brewes v.

supports

2001).

support

whether

and

As

either

substantial

evidence

result,

affirming

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evidence

that

“[i]f
or

supports

detracts

the

reversing

from

the

evidence
the

a

can

ALJ’s

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the ALJ.”

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2006).

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.

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PLAINTIFF’S CONTENTION

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Plaintiff contends that the ALJ failed to properly consider the

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opinion

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regarding the limitations caused by Plaintiff’s mental impairments.

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(See Joint Stip. at 3-5, 12).

of

psychiatric

consultative

examiner,

Dr.

Tanya

Scurry,

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DISCUSSION

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After reviewing the record, the Court finds that the ALJ did

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not give clear and convincing reasons for rejecting Dr. Scurry’s

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opinion.

The Court therefore remands for further consideration.

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A.

The ALJ Failed To Provide Clear And Convincing Reasons For
Rejecting The Opinion Of Dr. Scurry

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Plaintiff contends that the ALJ failed to provide specific and

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legitimate reasons for rejecting consultative examiner Dr. Scurry’s

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opinion, because “the ALJ failed to identify any evidence whatsoever

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that would cast doubt on Dr. Scurry’s findings, nor did he identify

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any other records that would support less-than-moderate limitations

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in the work-related abilities in question.”

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(Joint Stip. at 3-5).

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Defendant asserts that the ALJ properly gave “not great weight”5

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to Dr. Scurry’s opinion for the following reasons: (1) Dr. Scurry

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did not review any of Plaintiff’s medical records; (2) her opinion

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was

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inconsistent with Plaintiff’s own statements about his condition.

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(Joint Stip. at 5-12).

not

supported

by

those

records;

and

(3)

her

opinion

was

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On May 4, 2013, Plaintiff underwent a Comprehensive Psychiatric
Evaluation by Tanya Scurry, MD.

(See AR 409-16).

Plaintiff’s chief

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complaints were poor concentration, anxiety, depression, and severe

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fatigue.

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(AR 409).

Dr. Scurry noted that Plaintiff’s mood was

“depressed and rated at 4 to 6 out of 10.”
diagnosed

Plaintiff

with

mood

(AR 412).

Dr. Scurry

disorder,

secondary

to

a

general

disorder,

secondary

to

a

general

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medical

condition,

and

anxiety

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medical condition.

(AR 414).

Dr. Scurry stated that she believed

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“it would be difficult for [Plaintiff] to sustain gainful employment
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at this time” based on his psychiatric presentation.

(AR 415).

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Based

on

moderately

the

examination,

limited

in

his

Dr.

Scurry

ability

opined

to

do

that

detailed

Plaintiff
and

was

complex

instructions; relate and interact with supervisors, coworkers, and

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the

public;

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pace; associate with day-to-day work activity, including attendance

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and

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regular attendance in the work place and perform work activities on

safety;

maintain

accept

concentration,

instructions

attention,

from

persistence,

supervisors;

and

and

maintain

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Although Defendant asserts the ALJ gave Dr. Scurry’s opinion
some weight, the limitations that Dr. Scurry opined do not align
with Plaintiff’s RFC.
Accordingly, the ALJ gave Dr. Scurry’s
opinion no weight. (Compare AR 415-16 with AR 13).
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a consistent basis.

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was not limited in his ability to understand, remember, and carry

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out

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activities without special or additional supervision.

simple

one

or

(AR 415-16).

two-step

Dr. Scurry opined that Plaintiff

job

instructions

or

perform

work

(AR 415-16).

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“[T]he Commissioner must provide clear and convincing reasons
for rejecting the uncontradicted opinion of an examining physician.

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. . . [T]he opinion of an examining doctor, even if contradicted by
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another doctor, can only be rejected for specific and legitimate
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reasons that are supported by substantial evidence in the record.”
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Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995) (citations and
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internal quotation marks omitted).

Because Dr. Scurry’s opinion was

uncontradicted, the ALJ was required to give clear and convincing

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reasons for rejecting her opinion.

Id.

The clear and convincing

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standard is the most demanding standard required in Social Security

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cases.

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(9th Cir. 2002).

See Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924

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The ALJ set forth the following two reasons for rejecting Dr.

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Scurry’s opinion: (1) “[t]here was no treatment records during the

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adjudication

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limitations” regarding Plaintiff’s mental health limitations; and

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(2)

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social

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activities because of his mental health issues for any other reason

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other than his inability to concentrate.”

“the

period

claimant

functioning

that

supported

such

made

no

allegations

or

an

inability

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restrictive

regarding
to

perform

(AR 18).

functional

limitations
work

in

related

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As set forth below, the ALJ’s boilerplate statement that Dr.

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Scurry’s opinion was not supported by the medical record and his

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finding that Plaintiff himself did not mention social limitations in

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connection with his disability claim did not constitute clear and

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convincing reasons for rejecting the opinion.

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The ALJ erred in rejecting Dr. Scurry’s opinion because he

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needed to provide further explanation to substantiate his finding

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that no treatment records supported that opinion.

“[A]n ALJ errs

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

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doing nothing more than ignoring it, asserting without explanation

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that another medical opinion is more persuasive, or criticizing it

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with boilerplate language that fails to offer a substantive basis

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for his conclusion.”

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Cir. 2014).

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record

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supported the moderate mental functional limitations opined by Dr.

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Scurry.

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objective findings is not a sufficient reason to disregard that

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opinion.

to

Garrison v. Colvin, 759 F.3d 995, 1012–13 (9th

Here, the ALJ has pointed to no evidence from the
substantiate

his

finding

that

no

treatment

records

Merely stating that a medical opinion is not supported by

Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989).

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Dr.

Scurry

conducted

a

Comprehensive

Psychiatric

Evaluation

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that included clinical evidence that supported her opinion regarding

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Plaintiff’s

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proved by medically-acceptable clinical diagnoses, as well as by

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objective laboratory findings.”

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1156 (9th Cir. 1975); see 42 U.S.C. § 423(d)(3).

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evaluation

limitations.

included

the

(See

AR

409-16).

“Disability

may

be

Day v. Weinberger, 522 F.2d 1154,

diagnoses
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of

mood

disorder

Dr. Scurry’s
and

anxiety

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disorder, both secondary to a general medical condition.

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These diagnoses were made after clinical tests were administered

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pertaining to, in part, mood and affect, intellectual functioning,

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and concentration and calculations.

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Scurry’s opinion aligns with the opinions of State agency doctors

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Stephen Fair, Ph.D., and Peter Bradley, Ph.D.

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83).

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moderate

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social interaction, and adaptation.

Both

Dr.

Fair

limitations

and
in

Dr.

(See AR 409-16).

Bradley

sustained

found

(AR 414).

Moreover, Dr.

(See AR 60-67, 75that

concentration

Plaintiff

and

has

persistence,

(See AR 60-67, 75-83); see also

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Lester, 81 F.3d at 832 (a similarity of conclusions between doctors

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provides

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Accordingly,

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support Dr. Scurry’s opinion is not a clear and convincing reason to

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reject his opinion.6

reason

to

the

credit

ALJ’s

the

opinions

finding

that

as

opposed

treatment

to

records

reject).
did

not

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The

remaining

reason

the

ALJ

gave

in

his

decision

—

that

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Plaintiff did not mention limitations “in social functioning or an

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inability to perform work related activities because of his mental

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health issues . . . ” — is not a clear and convincing reason to

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reject Dr. Scurry’s opinion.

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mention a health condition does not permit the ALJ to infer that the

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condition does not exist.

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(9th Cir. 2006) (remanding ALJ’s decision for rejecting physician's

(AR 18).

A claimant’s failure to

Widmark v. Barnhart, 454 F.3d 1063, 1068

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The Court will not consider reasons for rejecting a
physician’s opinion that the ALJ did not provide in his Decision.
(See Joint Stip. at 7-8); see also Connett v. Barnhart, 340 F.3d
871, 874 (9th Cir. 2003)(“We are constrained to review the reasons
the ALJ asserts.”; citing SEC v. Chenery Corp., 332 U.S. 194, 196
(1947) and Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir.
2001)).
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opinion who assessed functional limitations that claimant did not

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mention in his benefits application or at the hearing); see also

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Attia v. Astrue, No. 1:06CV00778 SMS, 2007 WL 2802006, at *26 (E.D.

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Cal. Sept. 24, 2007) (plaintiff's failure to communicate a mental

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health condition and related limitations to doctors treating him for

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physical ailments was not a proper reason to reject a physician's

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opinion).

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has social functioning limitations in his Application or at the

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hearing, he did assert mental health concerns.

Here, while Plaintiff did not explicitly state that he

Plaintiff’s

failure

to

assert

(See AR 36, 232-37).

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Accordingly,

that

he

has

social

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functioning limitations was not a clear and convincing reason for

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rejecting Dr. Scurry’s opinion.

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B.

Remand Is Warranted

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The decision whether to remand for further proceedings or order

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an

immediate

award

of

benefits

Harman

v.

Apfel,

is

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discretion.

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2000).

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the

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immediate

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whether to remand for further proceedings turns upon the likely

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utility of such proceedings.”).

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the case suggest that further administrative review could remedy the

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Commissioner’s errors, remand is appropriate.

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F.3d 881, 888 (9th Cir. 2011); Harman, 211 F.3d at 1179-81.

211

within
F.3d

the

1172,

district
1175-78

court’s

(9th

Cir.

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

record

is

fully

award

of

developed,

benefits.

it

is

appropriate

Id.

at

1179

to

(“[T]he

direct

an

decision

of

However, where the circumstances of

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10

McLeod v. Astrue, 640

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Here, because the ALJ failed to properly reject the opinion of

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Dr. Scurry, remand is appropriate.

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opinion more weight, Plaintiff’s RFC may have been altered, which

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would

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disability.

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determination of disability can be made, and “when the record as a

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whole creates serious doubt as to whether the [Plaintiff] is, in

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fact,

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further administrative proceedings would serve a useful purpose and

have

impacted

the

ALJ’s

Had the ALJ given Dr. Scurry’s

ultimate

conclusions

regarding

Because outstanding issues must be resolved before a

disabled

within

the

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remedy defects.

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meaning

of

the

Social

Security

Act,”

Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir.

2014) (citations omitted).

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ORDER

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For the foregoing reasons, the decision of the Administrative

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Law Judge is VACATED, and the matter is REMANDED, without benefits,

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for

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405(g).

further

proceedings

pursuant

to

Sentence

4

of

42

U.S.C.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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Dated: June 23, 2017

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_____________/s/______________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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§