Diana Marie Lopez v. Carolyn W. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. See Order for details. (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DIANA MARIE LOPEZ,

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Plaintiff,

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v.

Case No. EDCV 16-1853 JC
MEMORANDUM OPINION AND
ORDER OF REMAND

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

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Defendant.

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I.

SUMMARY
On August 29, 2016, Diana Marie Lopez (“plaintiff”) filed a Complaint

seeking review of the Commissioner of Social Security’s denial of plaintiff’s
application for benefits. The parties have consented to proceed before the
undersigned United States Magistrate Judge.
This matter is before the Court on the parties’ cross motions for summary
judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The
Court has taken both motions under submission without oral argument. See Fed.
R. Civ. P. 78; L.R. 7-15; September 1, 2016 Case Management Order ¶ 5.
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Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is
hereby substituted for Commissioner Carolyn W. Colvin as the defendant in this action.

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Based on the record as a whole and the applicable law, the decision of the

2 Commissioner is REVERSED AND REMANDED for further proceedings
3 consistent with this Memorandum Opinion and Order of Remand.
4 II.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE

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DECISION

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On March 9, 2012, plaintiff filed applications for Supplemental Security

7 Income and Disability Insurance Benefits alleging disability beginning on
8 March 1, 2010 (“alleged onset date”), due to depression. (Administrative Record
9 (“AR”) 20, 185, 192, 238). The ALJ examined the medical record and heard
10 testimony from plaintiff (who was represented by counsel) and a vocational expert
11 on August 1, 2014. (AR 37-59).
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On September 22, 2014, the ALJ determined that plaintiff was not disabled

13 through the date of the decision. (AR 20-31). Specifically, the ALJ found that
14 plaintiff had engaged in substantial gainful activity during the period from January
15 2012 through December 2012. (AR 22). In addition, for the periods during which
16 plaintiff did not engage in substantial gainful activity (i.e., from the alleged onset
17 date through December 31, 2011, and from January 1, 2013 through the date of the
18 decision), the ALJ found: (1) plaintiff suffered from the following severe
19 impairments: bipolar disorder, psychotic disorder, dysthymic disorder, and mixed
20 personality disorder with borderline and antisocial features (AR 23); (2) plaintiff’s
21 impairments, considered singly or in combination, did not meet or medically equal
22 a listed impairment (AR 23-24); (3) plaintiff retained the residual functional
23 capacity to perform a full range of work at all exertional levels with additional
24 nonexertional limitations2 (AR 24); (4) plaintiff was unable to perform any past
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The ALJ determined that plaintiff could (i) understand, remember, and carry out simple
job instructions, but would be unable to perform work that would require directing others,
abstract thought, or planning; (ii) maintain attention and concentration to perform simple, routine
and repetitive tasks in a work environment free of fast paced production requirements; (iii) have
(continued...)

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1 relevant work (AR 29); (5) there are jobs that exist in significant numbers in the
2 national economy that plaintiff could perform, specifically hospital cleaner,
3 laundry worker, and hand packager (AR 29-30); and (6) plaintiff’s statements
4 regarding the intensity, persistence, and limiting effects of subjective symptoms
5 were not entirely credible (AR 25).
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On June 24, 2016, the Appeals Council denied plaintiff’s application for

7 review. (AR 1).
8 III.

APPLICABLE LEGAL STANDARDS

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A.

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Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that the claimant is

11 unable “to engage in any substantial gainful activity by reason of any medically
12 determinable physical or mental impairment which can be expected to result in
13 death or which has lasted or can be expected to last for a continuous period of not
14 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)
15 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The
16 impairment must render the claimant incapable of performing the work the
17 claimant previously performed and incapable of performing any other substantial
18 gainful employment that exists in the national economy. Tackett v. Apfel, 180
19 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
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In assessing whether a claimant is disabled, an ALJ is required to use the

21 following five-step sequential evaluation process:
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(1)

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Is the claimant presently engaged in substantial gainful activity? If
so, the claimant is not disabled. If not, proceed to step two.

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27 occasional interaction with coworkers and supervisors, and no direct interaction with the general
public; and (iv) work in an environment with occasional changes to the work setting and

28 occasional work-related decision making. (AR 24).
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(2)

Is the claimant’s alleged impairment sufficiently severe to limit

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the claimant’s ability to work? If not, the claimant is not

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disabled. If so, proceed to step three.

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(3)

Does the claimant’s impairment, or combination of

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impairments, meet or equal an impairment listed in 20 C.F.R.

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Part 404, Subpart P, Appendix 1? If so, the claimant is

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disabled. If not, proceed to step four.

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(4)

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perform claimant’s past relevant work? If so, the claimant is

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Does the claimant possess the residual functional capacity to
not disabled. If not, proceed to step five.

(5)

Does the claimant’s residual functional capacity, when

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considered with the claimant’s age, education, and work

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experience, allow the claimant to adjust to other work that

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exists in significant numbers in the national economy? If so,

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the claimant is not disabled. If not, the claimant is disabled.

16 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th
17 Cir. 2006) (citations omitted); see also 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)
18 (explaining five-step sequential evaluation process).
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The claimant has the burden of proof at steps one through four, and the

20 Commissioner has the burden of proof at step five. Burch v. Barnhart, 400 F.3d
21 676, 679 (9th Cir. 2005) (citation omitted).
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B.

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Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of

Standard of Review

24 benefits only if it is not supported by substantial evidence or if it is based on legal
25 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir.
26 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457
27 (9th Cir. 1995)).
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Substantial evidence is “such relevant evidence as a reasonable mind might

2 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
3 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but
4 less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan,
5 911 F.2d 180, 183 (9th Cir. 1990)). To determine whether substantial evidence
6 supports a finding, a court must “‘consider the record as a whole, weighing both
7 evidence that supports and evidence that detracts from the [Commissioner’s]
8 conclusion.’” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)
9 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).
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While an ALJ’s decision need not discuss every piece of evidence or be

11 drafted with “ideal clarity,” at a minimum it must explain the ALJ’s reasoning
12 with sufficient specificity and clarity to “allow[] for meaningful review.” Brown13 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citations and internal
14 quotation marks omitted); Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012)
15 (citation and quotation marks omitted); see also Craft v. Astrue, 539 F.3d 668, 673
16 (7th Cir. 2008) (ALJ must provide “accurate and logical bridge” between evidence
17 and conclusion that claimant is not disabled so reviewing court “may assess the
18 validity of the agency’s ultimate findings”) (citation and quotation marks omitted);
19 see generally 42 U.S.C. § 405(b)(1) (“ALJ’s unfavorable decision must, among
20 other things, “set[] forth a discussion of the evidence” and state “the reason or
21 reasons upon which it is based”).
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An ALJ’s decision to deny benefits must be upheld if the evidence could

23 reasonably support either affirming or reversing the decision. Robbins, 466 F.3d
24 at 882 (citing Flaten, 44 F.3d at 1457). Nonetheless, a court may not affirm
25 “simply by isolating a ‘specific quantum of supporting evidence.’” Id. at 882
26 (citation omitted). In addition, federal courts may review only the reasoning in the
27 administrative decision itself, and may affirm a denial of benefits only for the
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1 reasons upon which the ALJ actually relied. Garrison v. Colvin, 759 F.3d 995,
2 1010 (9th Cir. 2014) (citation omitted).
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Even when an ALJ’s decision contains error, it must be affirmed if the error

4 was harmless. Treichler v. Commissioner of Social Security Administration, 775
5 F.3d 1090, 1099 (9th Cir. 2014). An ALJ’s error is harmless if (1) it was
6 inconsequential to the ultimate nondisability determination; or (2) despite the
7 error, the ALJ’s path may reasonably be discerned, even if the ALJ’s decision was
8 drafted with less than ideal clarity. Id. (citation and quotation marks omitted).
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A reviewing court may not conclude that an error was harmless based on

10 independent findings gleaned from the administrative record. Brown-Hunter, 806
11 F.3d at 492 (citations omitted). When a reviewing court cannot confidently
12 conclude that an error was harmless, a remand for additional investigation or
13 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173
14 (9th Cir. 2015) (citations omitted).
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DISCUSSION

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Plaintiff contends that a reversal or remand is warranted, in part, because the

17 ALJ improperly rejected the opinions expressed by Dr. Jaga Nath Glassman, a
18 consultative examining psychiatrist, in the report of an April 8, 2013 Psychiatric
19 Disability Evaluation of plaintiff (“Dr. Glassman’s Report”). (Plaintiff’s Motion
20 at 5-9; AR 356-61). The Court agrees. As the Court cannot confidently conclude
21 that the ALJ’s error was harmless, a remand is warranted.
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A.

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In Social Security cases, the amount of weight given to medical opinions

Pertinent Law

24 generally varies depending on the type of medical professional who provided the
25 opinions, namely “treating physicians,” “examining physicians,” and
26 “nonexamining physicians” (e.g., “State agency medical or psychological
27 consultant[s]”). 20 C.F.R. §§ 404.1527(c)(1)-(2) & (e), 404.1502, 404.1513(a);
28 416.927(c)(1)-(2) & (e), 416.902, 416.913(a); Garrison, 759 F.3d at 1012 (citation
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1 and quotation marks omitted). A treating physician’s opinion is generally given
2 the most weight, and may be “controlling” if it is “well-supported by medically
3 acceptable clinical and laboratory diagnostic techniques and is not inconsistent
4 with the other substantial evidence in [the claimant’s] case record[.]” 20 C.F.R.
5 §§ 404.1527(c)(2), 416.927(c)(2); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir.
6 2007) (citations and quotation marks omitted). In turn, an examining, but non7 treating physician’s opinion is entitled to less weight than a treating physician’s,
8 but more weight than a nonexamining physician’s opinion. Garrison, 759 F.3d at
9 1012 (citation omitted).
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A treating or examining physician’s opinion, however, is not necessarily

11 conclusive as to either a physical condition or the ultimate issue of disability.
12 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). An
13 ALJ may reject the uncontroverted opinion of either a treating or examining
14 physician by providing “clear and convincing reasons that are supported by
15 substantial evidence” for doing so. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th
16 Cir. 2005) (citation omitted). Where a treating or examining physician’s opinion
17 is contradicted by another doctor’s opinion, an ALJ may reject such opinion only
18 “by providing specific and legitimate reasons that are supported by substantial
19 evidence.” Garrison, 759 F.3d at 1012 (citation and footnote omitted).
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An ALJ may provide “substantial evidence” for rejecting a medical opinion

21 by “setting out a detailed and thorough summary of the facts and conflicting
22 clinical evidence, stating his [or her] interpretation thereof, and making findings.”
23 Id. (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)) (quotation marks
24 omitted). An ALJ must provide more than mere “conclusions” or “broad and
25 vague” reasons for rejecting a treating or examining physician’s opinion. Embrey
26 v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988); McAllister v. Sullivan, 888 F.2d
27 599, 602 (9th Cir. 1989) (citation omitted). “[The ALJ] must set forth his [or her]
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1 own interpretations and explain why they, rather than the [physician’s], are
2 correct.” Embrey, 849 F.2d at 421-22.
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B.

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First, the ALJ apparently gave less weight to Dr. Glassman’s opinions, in

Analysis

5 part, based on an “inference” that plaintiff had “exaggerated her mental
6 complaints” during the psychiatric consultative examination with Dr. Glassman.
7 (AR 27). Specifically, the ALJ wrote “the body of [Dr. Glassman’s Report] . . .
8 implies that the [plaintiff] was overly dramatic, creating an inference of
9 exaggeration.” (AR 27) (citing Ex. 5F at 7-8 [AR 359-60]). Substantial evidence
10 does not support the ALJ’s finding. The ALJ appears to be referring to Dr.
11 Glassman’s finding that plaintiff “exhibited a marked ‘dramatic/long-suffering’
12 attitude and demeanor.” (AR 360). Nonetheless, although the ALJ “adopt[ed] the
13 opinions of the State Agency review psychiatrists [sic], in particular, the second
14 review psychiatrist[,]”3 neither state agency doctor drew such an inference from
15 any portion of Dr. Glassman’s Report. (AR 63, 73, 88, 103); cf., e.g., Tommasetti
16 v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008) (ALJ’s “own speculation” not
17 substantial evidence supporting ALJ conclusion). Moreover, Dr. Glassman’s
18 finding regarding plaintiff’s attitude and demeanor appears simply to document
19 characteristics displayed by individuals, like plaintiff, who have the types of
20 personality disorders Dr. Glassman diagnosed – i.e., “Mixed Personality Disorder,
21 Borderline and Antisocial Features.” (AR 360); see, e.g., American Psychiatric
22 Association, Diagnostic and Statistical Manual of Mental Disorders, 685 (4th ed.
23 2000) (“[Individuals with] Antisocial, Borderline, Histrionic, and Narcissistic
24 Personality Disorders . . . often appear dramatic, emotional, or erratic.”).
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The record reflects that plaintiff’s applications for benefits were evaluated at the initial
level by a state agency psychologist – i.e., Barbara Moura, PsyD. (AR 63, 67, 73, 77). Plaintiff’s
claims were reviewed by a state agency psychiatrist, i.e., Dr. Jay S. Flocks, at the reconsideration
level. (AR 88, 96, 103, 111).

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Second, the ALJ wrote that Dr. Glassman’s Report “was vague and did not

2 specify which limitations were moderate and which limitations were marked[,]”
3 and concluded “the overall evidence does not support a finding of marked
4 limitations such that [plaintiff] is unable to engage in work.” (AR 27). Such
5 broad and vague reasons, however, are insufficient for giving less weight to the
6 opinions in Dr. Glassman’s Report. See McAllister, 888 F.2d at 602. For
7 example, the ALJ failed to explain precisely how Dr. Glassman’s reporting was
8 deficient or how the medical record as a whole undermined the examining
9 psychiatrist’s opinions. In fact, on reconsideration Dr. Flocks observed that Dr.
10 Glassman had provided “his usual thoughtful report.” (AR 88, 103). To the
11 extent the ALJ felt that Dr. Glassman’s Report was ambiguous, the ALJ should
12 have contacted Dr. Glassman to clarify any ambiguity. See Mayes v. Massanari,
13 276 F.3d 453, 459-60 (9th Cir. 2001) (citation omitted) (Although plaintiff bears
14 the burden of proving disability, the ALJ has an affirmative duty to assist the
15 claimant in developing the record “when there is ambiguous evidence or when the
16 record is inadequate to allow for proper evaluation of the evidence.”); Tonapetyan
17 v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (ALJ has duty to develop record
18 fully whether or not claimant is represented – a duty that is “heightened where the
19 claimant may be mentally ill”) (citations omitted).
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Third, even so, the ALJ’s evaluation of such opinion evidence was not

21 supported by substantial evidence. For example, the ALJ primarily relied on the
22 opinions of Dr. Flocks, the state agency psychiatrist at the reconsideration level of
23 review. (AR 29). Nonetheless, without more, Dr. Flocks’ opinions do not
24 constitute substantial evidence supporting the ALJ’s rejection of any portion of
25 Dr. Glassman’s Report. In short, it appears that Dr. Flocks relied almost entirely
26 on the same objective findings as Dr. Glassman. See Tonapetyan, 242 F.3d at
27 1149 (citation omitted) (contrary opinion of non-examining medical expert may be
28 “substantial evidence” supporting an ALJ’s decision only to the extent it is
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1 consistent with other independent medical evidence); cf. Orn, 495 F.3d at 632
2 (“When an examining physician relies on the same clinical findings as a treating
3 physician, but differs only in his or her conclusions, the conclusions of the
4 examining physician are not ‘substantial evidence.’”). Indeed, the record suggests
5 that Dr. Flocks had concluded that plaintiff’s applications could not adequately be
6 evaluated at the reconsideration level without an updated psychiatric consultative
7 examination like Dr. Glassman’s. (See, e.g., AR 101 [Disability Determination
8 Explanation at Reconsideration level noting that a “specific” consultative
9 examination was “needed” because “[t]he evidence as a whole, both medical and
10 non-medical, is not sufficient to support a decision on the claim”]; AR 103 [Dr.
11 Flocks noting at reconsideration level “we will need an updated [consultative
12 examination] with a Board Certified/Eligible Psychiatrist fir [sic] evaluation and
13 MSS re: [plaintiff’s] affective disorder, at this point.”]).
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To the extent defendant suggests that the ALJ properly gave less weight to

15 Dr. Glassman’s opinions simply because they were contradicted by multiple
16 medical opinions in the record (Defendant’s Motion at 2-4), defendant’s
17 suggestion lacks merit. See Garrison, 759 F.3d at 1012 (even when contradicted,
18 an examining physician’s opinion may only be rejected based on “specific and
19 legitimate reasons that are supported by substantial evidence”) (citations and
20 internal quotation marks omitted); cf, e.g., Brewer v. Astrue, 2013 WL 140241, *2
21 (C.D. Cal. Jan. 9, 2013) (“[T]he contradiction of a treating physician’s opinion by
22 another physician’s opinion triggers rather than satisfies the requirement of stating
23 ‘specific, legitimate reasons.’”) (citations omitted).
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Finally, the Court is unable confidently to conclude that the ALJ’s errors

25 were harmless. For example, Dr. Glassman opined, in pertinent part, that plaintiff
26 “[had] impairments in her capacity to understand and follow even simple
27 instructions consistently.” (AR 360-61). At the hearing, the vocational expert
28 testified that a hypothetical individual with the same characteristics as plaintiff
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1 would be unable to engage in any “competitive employment” to the extent Dr.
2 Glassman’s opinion was interpreted “[to] mean[] that [the individual] cannot
3 follow simple instructions.” (AR 56). In light of the foregoing, the Court cannot
4 confidently conclude that the ALJ’s failure properly to consider Dr. Glassman’s
5 Report was inconsequential to the ALJ’s nondisability determination at step five.
6 See, e.g., Sawyer v. Astrue, 303 Fed. Appx. 453, 455 (9th Cir. 2008) (ALJ’s
7 failure properly to consider medical opinions not harmless because error was
8 “directly relevant to the ultimate issue” of the exertion level of work claimant
9 could perform) (citing Stout, 454 F.3d at 1055).
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Accordingly, a remand is required, at a minimum, so the ALJ can reevaluate

11 the medical opinion evidence.
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CONCLUSION4

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For the foregoing reasons, the decision of the Commissioner of Social

14 Security is reversed in part, and this matter is remanded for further administrative
15 action consistent with this Opinion.5
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LET JUDGMENT BE ENTERED ACCORDINGLY.

17 DATED: March 27, 2017
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______________/s/___________________
Honorable Jacqueline Chooljian
UNITED STATES MAGISTRATE JUDGE

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The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s

23 decision, except insofar as to determine that a reversal and remand for immediate payment of
24 benefits would not be appropriate.
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When a court reverses an administrative determination, “the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation.”
Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and
quotations omitted). Remand is proper where, as here, “additional proceedings can remedy
defects in the original administrative proceeding. . . .” Garrison, 759 F.3d at 1019 (citation and
internal quotation marks omitted).

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