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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DIANA MARIE LOPEZ, 12 Plaintiff, 13 14 15 v. Case No. EDCV 16-1853 JC MEMORANDUM OPINION AND ORDER OF REMAND NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 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. 1 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. 1 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 5 DECISION 6 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). 12 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 25 26 27 28 2 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...) 2 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). 6 On June 24, 2016, the Appeals Council denied plaintiff’s application for 7 review. (AR 1). 8 III. APPLICABLE LEGAL STANDARDS 9 A. 10 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)). 20 In assessing whether a claimant is disabled, an ALJ is required to use the 21 following five-step sequential evaluation process: 22 (1) 23 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 24 /// 25 26 (...continued) 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). 3 1 (2) Is the claimant’s alleged impairment sufficiently severe to limit 2 the claimant’s ability to work? If not, the claimant is not 3 disabled. If so, proceed to step three. 4 (3) Does the claimant’s impairment, or combination of 5 impairments, meet or equal an impairment listed in 20 C.F.R. 6 Part 404, Subpart P, Appendix 1? If so, the claimant is 7 disabled. If not, proceed to step four. 8 (4) 9 perform claimant’s past relevant work? If so, the claimant is 10 11 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 12 considered with the claimant’s age, education, and work 13 experience, allow the claimant to adjust to other work that 14 exists in significant numbers in the national economy? If so, 15 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). 19 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). 22 B. 23 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)). 28 /// 4 1 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)). 10 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”). 22 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 28 /// 5 1 reasons upon which the ALJ actually relied. Garrison v. Colvin, 759 F.3d 995, 2 1010 (9th Cir. 2014) (citation omitted). 3 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). 9 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). 15 IV. DISCUSSION 16 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. 22 A. 23 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 6 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). 10 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). 20 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] 28 /// 7 1 own interpretations and explain why they, rather than the [physician’s], are 2 correct.” Embrey, 849 F.2d at 421-22. 3 B. 4 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.”). 25 26 27 28 3 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). 8 1 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). 20 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 9 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.”]). 14 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). 24 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 10 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). 10 Accordingly, a remand is required, at a minimum, so the ALJ can reevaluate 11 the medical opinion evidence. 12 V. CONCLUSION4 13 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 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 DATED: March 27, 2017 18 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 19 20 21 22 4 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. 25 26 27 28 5 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). 11

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