Lesly Lynnene Lewis v. Carolyn W. Colvin

Filing 25

MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish Re Complaint. For all of the foregoing reasons, IT IS ORDERED that: (1) the decision of the Commissioner is REVERSED and this matter REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Memorandum Opinion and Order; and (2) Judgment be entered in favor of Plaintiff. (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Plaintiff

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Case No. 5:16-cv-01754-GJS

LESLY LYNNENE LEWIS,

MEMORANDUM OPINION
AND ORDER

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

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I.

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PROCEDURAL HISTORY

Plaintiff Lesly Lynnene Lewis (“Plaintiff”) filed a complaint seeking review

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of Defendant Commissioner of Social Security’s (“Commissioner”) denial of her

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application for Disability Insurance Benefits (“DIB”). The parties filed consents to

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proceed before the undersigned United States Magistrate Judge [Dkts. 10, 11] and

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briefs addressing disputed issues in the case [Dkt. 20 (“Pltf.’s Br.”); Dkt. 23 (“Def.’s

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Br.”), Dkt. 24 (“Pltf.’s Statement of No Reply”)]. The Court has taken the parties’

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briefing under submission without oral argument. For the reasons discussed below,

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the Court finds that this matter should be remanded for further proceedings.

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II.

ADMINISTRATIVE DECISION UNDER REVIEW

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On July 1, 2011, Plaintiff filed an application for DIB, alleging that she

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became disabled as of August 1, 2010. [Dkt. 14, Administrative Record (“AR”) 10.]

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The Commissioner denied her initial claim for benefits in October 2011 and then

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denied her claim upon reconsideration in May 2012. [Id.] On January 9, 2013, a

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hearing was held before Administrative Law Judge (“ALJ”) James P. Nguyen. [AR

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27-46.] On January 31, 2013, the ALJ issued a decision denying Plaintiff’s request

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for benefits. [AR 7-23.] Plaintiff requested review from the Appeals Council, but

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the Appeals Council denied her request for review on April 28, 2014. [AR 1-3.]
Plaintiff filed a civil action on July 7, 2014. This Court remanded the case to

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the Commissioner for further proceedings on July 9, 2015. [AR 394-407 (Lewis v.

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Colvin, 5:14-cv-01326-GJS, Dkt. 27).] Subsequently, on February 23, 2016, a

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second hearing was held before ALJ Dante M. Alegre. [AR 358-389.] On April 9,

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2016, the ALJ issued a decision again denying Plaintiff’s request for benefits. [AR

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449-467.] Plaintiff now seeks review directly from this Court. See 20 C.F.R. §

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404.984.
Applying the five-step sequential evaluation process, the ALJ found that

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Plaintiff was not disabled. See 20 C.F.R. §§ 404.1520(b)-(g)(1). At step one, the

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ALJ concluded that Plaintiff had not engaged in substantial gainful activity since the

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alleged onset date of August 1, 2010 through her date last insured of December 31,

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2015. [AR 454.] At step two, the ALJ found that Plaintiff suffered from the

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following severe impairments: obesity; migraines; carpal tunnel syndrome, right;

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peripheral neuropathy; obstructive sleep apnea (OSA); bipolar disorder; and

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depressive disorder with anxiety. [Id. (citing 20 C.F.R. § 404.1520(c).] Next, the

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ALJ determined that Plaintiff did not have an impairment or combination of

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impairments that meets or medically equals the severity of one of the listed

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impairments. [AR 455 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1; 20 C.F.R.

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§§ 404.1520(d), 404.1525, 404.1526).]

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The ALJ found that Plaintiff had the following residual functional capacity

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(RFC):
[L]ight work as defined in 20 CFR 404.1567(b).
Specifically, the claimant can lift/carry twenty pounds
occasionally and ten pounds frequently; stand/walk for six
hours out of an eight hour workday; sit for six hours out of
an eight hour workday; occasionally climb ramps and
stairs; never climb ladders, ropes, and scaffolds,
occasionally balance, stoop, kneel, crouch, and crawl; and
frequently handle and finger. The claimant can
understand, remember and carry out simple job tasks, but
capable of performing GED level 1, 2, or 3, the claimant is
unable to perform work that would require directing
others, abstract thought or planning, maintain attention and
concentration to perform simple tasks in a work
environment free of fast paced production requirements,
with frequent interaction with supervisors, coworkers and
the public. The claimant can work in an environment with
occasional changes to the work setting and occasional
work related decision making.

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[AR 457.]1 Applying this RFC, the ALJ found that Plaintiff is unable to perform

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any past relevant work, but determined that based on Plaintiff’s age, education,

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work experience, and residual functional capacity, she could perform representative

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occupations such as mail clerk (DOT 209.687-026), office helper (DOT 239.567-

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010), and, assembler, electrical (DOT 729.687-010) and, thus, is not disabled. [AR

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461-462.]
III.

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Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to

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GOVERNING STANDARD

determine if: (1) the Commissioner’s findings are supported by substantial evidence;
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The Court, frankly, finds this RFC to be near incoherent. It is perhaps missing
some words, but it is unclear whether certain phrases detail things plaintiff allegedly
can do or whether they are intended to be limitations, setting forth things she cannot
do. The RFC says that plaintiff can perform “simple job tasks.” [AR 457.] But it
also says, for example, that “the claimant is unable to . . . maintain attention and
concentration and concentration to perform simple tasks in a work environment free
of fast paced production requirements . . . .” [Id.] The Court is unsure if there are
words or punctuation missing that would clarify the RFC, but in any event, the
Court hopes that the ALJ will be more careful on remand.
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and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r

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Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d

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1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson v.

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Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see

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also Hoopai, 499 F.3d at 1074.
IV.

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DISCUSSION

Plaintiff contends that the ALJ: (1) erred in assessing her RFC and (2) erred
in the assessment of her credibility. [Pltf.’s Br. at 1-2.] As set forth below, the
Court agrees with Plaintiff, in part, and remands the matter for further proceedings.
A. Plaintiff’s RFC

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Plaintiff first contends that the ALJ erred in not including limitations in the

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RFC that result from Plaintiff’s severe migraine headaches. [Pltf.’s Br. at 6.] The

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Court disagrees.

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A claimant’s RFC is the most a claimant can still do despite her limitations.

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Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996) (citing 20 C.F.R. §

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416.945(a)); Social Security Ruling (“SSR”) 96-8p (an RFC assessment is ordinarily

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the “maximum remaining ability to do sustained work activities in an ordinary work

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setting on a regular and continuing basis,” meaning “8 hours a day, for 5 days a

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week, or an equivalent work schedule”). In assessing a claimant’s RFC, the ALJ

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must consider all of the relevant evidence in the record. See 20 C.F.R. §§

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404.1545(a)(2), (3). If an RFC assessment conflicts with an opinion from a medical

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source, the ALJ “must explain why the opinion was not adopted.” SSR 96-8p; see

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also Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (explaining that an

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ALJ is not required to discuss all the evidence presented, but must explain the

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rejection of uncontroverted medical evidence, as well as significant probative

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evidence).

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Here, Plaintiff identifies a September 24, 2010 treatment note from Dr.
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Purnima Thakran, M.D., a treating physician, stating that Plaintiff’s headaches

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prevented her from working from August 31, 2010 to January 7, 2011. [AR 573-

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575.] In addition, on May 12, 2014, Dr. Karnani, M.D., a treating neurologist,

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diagnosed Plaintiff with having migraine headaches. [AR 576.] Subsequently, on

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November 9, 2015, Dr. Robert A. Moore, M.D., a neurological consultative

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examiner, diagnosed Plaintiff as having “chronic headache syndrome.” [AR 554.]

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However, the ALJ gave “little weight” to the opinion of Dr. Thakran, in part

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because Dr. Thakran’s opinion was inconsistent with Plaintiff’s daily activities (a

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finding that Plaintiff does not challenge). The remainder of the medical evidence

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Plaintiff cites to merely documents the existence of her migraine headaches, which

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the ALJ recognized as a severe impairment. [AR 454.] Accordingly, Plaintiff has

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not met her burden of showing any findings that should have been included in

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Plaintiff’s RFC regarding her migraine headaches.

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Plaintiff next contends that the ALJ erred in failing to explain why the RFC

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assessment omitted findings of the consultative psychologist, Dr. J. Zhang, Psy.D.

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[Pltf.’s Br. at 8-9.] As discussed below, the Court agrees.

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Dr. Zhang opined that Plaintiff has moderate impairment in her abilities to

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understand, remember, and carry out detailed and complex instructions; maintain

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concentration, persistence, and pace; maintain consistent attendance and to

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perform routine work duties; and to respond appropriately to usual work

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situations and to changes in a routine. [AR 564-572.] The ALJ gave Dr. Zhang’s

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opinion regarding Plaintiff’s mental functional capacity “great weight.” [AR 460.]

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However, the ALJ’s RFC did not account for Dr. Zhang’s opinion that Plaintiff

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would have moderate impairment in her ability to maintain consistent attendance, to

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perform routine work duties, and to respond appropriately to usual work situations.

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Plaintiff contends that the ALJ erred by failing to offer any explanation as to why

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these limitations were omitted from the RFC.

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Although the ALJ purportedly gave great weight to Dr. Zhang’s opinion, the
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ALJ failed to explain why he did not include in the RFC assessment Dr. Zhang’s

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findings that Plaintiff has moderate limitations in the ability to perform routine work

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duties, maintain consistent attendance in the workplace, and respond appropriately

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to usual work situations. See SSR 96-8p; see also Vincent, 739 F.2d at 1394-95.

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The opinion of an examining psychologist, such as Dr. Zhang, can be rejected only

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for specific and legitimate reasons that are supported by substantial evidence in the

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record. Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1298-99 (9th

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Cir. 1999) (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). As such, the

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ALJ erred by failing to provide any reasons for rejecting these portions of Dr.

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Zhang’s opinion.
In response, the Commissioner contends that the RFC accounted for all the

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limitations assessed by Dr. Zhang. [Def.’s Br. at 6.] Specifically, the

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Commissioner argues that Plaintiff’s moderate mental limitations were adequately

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captured by a restriction to simple tasks. [Id.] The Commissioner’s argument is not

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persuasive. Although the ALJ’s RFC restriction for simple tasks may encompass

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the concentration, persistence, and pace limitations assessed by Dr. Zhang, the RFC

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does not sufficiently account for Plaintiff’s moderate limitations in performing

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routine work duties, maintaining consistent attendance in the workplace, or

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responding appropriately to usual work situations. See, e.g., Morinskey v. Astrue,

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458 Fed. Appx. 640, 641 (9th Cir. 2011) (finding ALJ erred by failing to analyze or

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make findings setting forth specific, legitimate reasons for rejecting the examining

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consultant’s opinion that the claimant was moderately impaired in the ability to

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maintain regular attendance, sustain an ordinary routine, and complete a normal

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work day or workweek without interruption from his bi-polar disorder); Padilla v.

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Colvin, No. ED CV 14-1843-PLA, 2015 WL 3849128, at *5-6 (C.D. Cal. June 22,

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2015) (“despite the ALJ’s assertion that he afforded [the examining psychiatrist’s]

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opinion significant weight . . . , the ALJ failed to explain why he apparently rejected

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and did not include in the RFC determination [the examining psychiatrist’s]
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moderate limitations in the ability to perform work activities on a consistent basis

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without special or additional supervision, and to complete a normal workday or

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work week due to her mental condition”); Gloria v. Astrue, No. C08-5714RJB-KLS,

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2009 WL 1763301, at *14 (W.D. Wash. June 19, 2009). This error warrants

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reversal.2
V.

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CONCLUSION

The decision of whether to remand for further proceedings or order an

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immediate award of benefits is within the district court’s discretion. Harman v.

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Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be

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served by further administrative proceedings, or where the record has been fully

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developed, it is appropriate to exercise this discretion to direct an immediate award

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of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings

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turns upon the likely utility of such proceedings”). But when there are outstanding

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issues that must be resolved before a determination of disability can be made, and it

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is not clear from the record the ALJ would be required to find the claimant disabled

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if all the evidence were properly evaluated, remand is appropriate. Id.

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The Court finds that remand is appropriate because the circumstances of this

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case suggest that further administrative review could remedy the ALJ’s errors. See

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

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determination, the proper course is remand for additional agency investigation or

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explanation, “except in rare circumstances”); Treichler v. Comm’r of Soc. Sec.

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Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (remand for award of benefits is

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inappropriate where “there is conflicting evidence, and not all essential factual

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issues have been resolved”); Harman, 211 F.3d at 1180-81. The Court has found

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The Court has not reached the last issue raised by Plaintiff regarding Plaintiff’s
credibility except as to determine that reversal with a directive for the immediate
payment of benefits would not be appropriate at this time. However, the ALJ should
address this additional contention of error in evaluating the evidence on remand.
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that the ALJ erred at step four of the sequential evaluation process. Thus, remand is

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appropriate to allow the Commissioner to continue the sequential evaluation process

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starting at step four.

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For all of the foregoing reasons, IT IS ORDERED that:

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(1) the decision of the Commissioner is REVERSED and this matter

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REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further

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administrative proceedings consistent with this Memorandum Opinion and

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Order; and

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(2) Judgment be entered in favor of Plaintiff.

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IT IS SO ORDERED.

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DATED: May 09, 2017

__________________________________
GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE

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