Danny Lopez v. Carolyn W. Colvin

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff filed this action on December 27, 2016. Pursuant to 28 U.S.C. § 636(c),the parties consented to proceed before the magistrate judge. (Dkt. Nos. 11, 12.) On November 9, 2017, the parties filed a Joint Stipulation ("JS") that addressed the disputed issue. The court has taken the matter under submission without oral argument. Having reviewed the entire file, the court reverses the decision of the Commissi oner and remands for further proceedings consistent with this opinion. IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and the matter is remanded for further proceedings consistent with this opinion. (See Order for details.) (mp)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

DANNY LOPEZ,

12

Plaintiff,

13
14
15

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

16
17

)
)
)
)
)
)
)
)
)
)
)

No. EDCV 16-2641 AGR

MEMORANDUM OPINION AND ORDER

Plaintiff filed this action on December 27, 2016. Pursuant to 28 U.S.C. § 636(c),

18

the parties consented to proceed before the magistrate judge. (Dkt. Nos. 11, 12.) On

19

November 9, 2017, the parties filed a Joint Stipulation (“JS”) that addressed the

20

disputed issue. The court has taken the matter under submission without oral

21

argument.

22
23
24
25
26
27
28

Having reviewed the entire file, the court reverses the decision of the
Commissioner and remands for further proceedings consistent with this opinion.

1

I.

2

PROCEDURAL BACKGROUND

3

Lopez filed an application for disability insurance benefits on December 10, 2012

4

and alleged an onset date of April 20, 2011. Administrative Record (“AR”) 16. The

5

application was denied initially and on reconsideration. AR 16, 58, 66. Lopez

6

requested a hearing before an Administrative Law Judge (“ALJ”). On April 17, 2015,

7

the ALJ conducted a hearing at which Lopez and a vocational expert (“VE”) testified.

8

AR 32-49. On May 14, 2015, the ALJ issued a decision denying benefits. AR 13-27.

9

On October 28, 2016, the Appeals Council denied review. AR 1-6. This action

10

followed.

11

II.

12

STANDARD OF REVIEW

13

Pursuant to 42 U.S.C. § 405(g), this court has authority to review the

14

Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not

15

supported by substantial evidence, or if it is based upon the application of improper

16

legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam);

17

Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

18

“Substantial evidence” means “more than a mere scintilla but less than a

19

preponderance – it is such relevant evidence that a reasonable mind might accept as

20

adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether

21

substantial evidence exists to support the Commissioner’s decision, the court examines

22

the administrative record as a whole, considering adverse as well as supporting

23

evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than

24

one rational interpretation, the court must defer to the Commissioner’s decision.

25

Moncada, 60 F.3d at 523.

26
27
28
2

1

III.

2

DISCUSSION

3

A.

Disability

4

A person qualifies as disabled, and thereby eligible for such benefits, “only if his

5

physical or mental impairment or impairments are of such severity that he is not only

6

unable to do his previous work but cannot, considering his age, education, and work

7

experience, engage in any other kind of substantial gainful work which exists in the

8

national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (citation and

9

quotation marks omitted).

10

B.

The ALJ’s Findings

11

The ALJ found that Lopez met the insured status requirements through March 31,

12

2014. AR 18. Following the five-step sequential analysis applicable to disability

13

determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),1 the ALJ

14

found that Lopez had the severe impairments of cervical and lumbar strain/sprain; right

15

shoulder strain/sprain; anxiety; and depression. AR 18. Through the date last insured,

16

he had the residual functional capacity (“RFC”) to perform medium work except that he

17

could sit, stand and walk for six hours in an eight-hour workday, and frequently perform

18

postural activities. He could not continuously or repetitively move his neck. Lopez was

19

limited to nonpublic work and simple, repetitive tasks that involved only non-intense and

20

superficial interaction with supervisors and counselors. AR 20. Lopez could not

21

perform his past relevant work but there were jobs that existed in significant numbers in

22

the national economy that he could perform such as machine feeder, kitchen helper and

23

industrial cleaner. AR 25-27.

24
25
26
27
28

1

The five-step sequential analysis examines whether the claimant engaged in
substantial gainful activity, whether the claimant’s impairment is severe, whether the
impairment meets or equals a listed impairment, whether the claimant is able to do his
or her past relevant work, and whether the claimant is able to do any other work.
Lounsburry, 468 F.3d at 1114.
3

1
2

C.

Examining Physician

An examining physician’s opinion constitutes substantial evidence when, as

3

here, it is based on independent clinical findings. Orn v. Astrue, 495 F.3d 625, 632 (9th

4

Cir. 2007). When an examining physician's opinion is contradicted, “it may be rejected

5

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

6

record.’” Carmickle v. Comm'r, 533 F.3d 1155, 1164 (9th Cir. 2008) (citation omitted).

7

“‘The opinion of a nonexamining physician cannot by itself constitute substantial

8

evidence that justifies the rejection of the opinion of either an examining physician or a

9

treating physician.’” Ryan v. Comm’r, 528 F.3d 1194, 1202 (9th Cir. 2008) (citation

10

omitted) (emphasis omitted). However, a non-examining physician’s opinion may serve

11

as substantial evidence when it is supported by other evidence in the record and is

12

consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).

13

Dr. Hoang, an orthopedist, examined Lopez and prepared an opinion dated

14

March 25, 2013. AR 293-97. Lopez reported that, on April 20, 2011 while on the job as

15

a truck driver, he was sitting in the driver’s seat when he was robbed of his cashbox at

16

gunpoint and struck in the face with a pistol. He called 911 and filed a police report. AR

17

253-54, 293-94. Dr. Hoang noted normal posture, gait, and heel/toe walking. He was

18

able to squat/rise and get on/off the examination table without difficulty. AR 294. His

19

cervical spine had normal range of motion and no muscle spasm, but had tenderness to

20

palpation over the right para-cervical musculature and sub-occipital region. Range of

21

motion of the thoracolumbar spine was limited 80/90 on flexion and otherwise normal.

22

There was no muscle spasm, but Lopez had tenderness to palpation over the L5/S1

23

lumbar spincus processes and right paraspinal muscles. Both shoulders were within

24

normal limits except for tenderness over the posterior aspect of the right shoulder.

25

Lopez had full range of motion of the shoulders, elbows and wrists. AR 295. His left

26

hand was within normal limits. His right hand had mild tenderness over the PIP joints

27

and non-specific pain over the dorsal radial aspect. Lopez had no loss of grip strength.

28

Lower extremities were within normal limits. Motor strength was 5/5. AR 296.
4

1

Dr. Hoang opined that Lopez could lift/carry/push/pull 50 pounds occasionally and

2

20 pounds frequently; sit, stand or walk six hours in an eight-hour workday; and perform

3

frequent postural activities. AR 297.

4

The ALJ gave “great weight” to the opinions of Dr. Hoang and Dr. Lane, who

5

performed a Panel Qualified Medical Examination on January 27, 2014, ten months

6

after Dr. Hoang’s examination. AR 24, 451-86. Dr. Lane noted tenderness over the

7

para-cervical musculature and suprascapular/trapezius region with muscle guarding.

8

AR 462. Lopez had normal muscle and grip strength. AR 463. He had tenderness

9

over the lumbar spine and paraspinal muscles. Muscle strength was normal. AR 464.

10

Dr. Lane diagnosed cervical strain, and found that the lumbar symptoms are “quite mild

11

and do not warrant treatment.” AR 465. Dr. Lane opined that Lopez would be

12

precluded from repetitive cervical motions and could return to his usual and customary

13

occupation. AR 466-67. The ALJ adopted greater restrictions than Dr. Lane “to better

14

account for the pain and symptomatology as noted throughout the file and as reported

15

by Dr. Hoang.” AR 24.

16

Lopez argues that the ALJ incorrectly stated that Dr. Hoang opined he was able

17

to lift 25 pounds frequently (AR 23) and further argues that Dr. Hoang’s lift/carry

18

limitation of 20 pounds frequently would preclude medium work, which requires

19

“frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. §

20

404.1567(c). That regulation provides that “[i]f someone can do medium work, we

21

determine that he or she can also do sedentary and light work.” Id.

22

Defendant argues that any error in the ALJ’s transcription is harmless. Molina v.

23

Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (“We have, for example, deemed errors

24

harmless where the ALJ misstated the facts about the claimant, but we were able to

25

conclude from the record that the ALJ would have reached the same result absent the

26

error.”).

27
28
5

1

“‘[A] reviewing court cannot consider [an] error harmless unless it can confidently

2

conclude that no reasonable ALJ . . . could have reached a different disability

3

determination.’” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (citation omitted).

4

The record does not provide this court with any basis on which to evaluate the

5

effect, if any, on the disability determination if the vocational expert were given a

6

hypothetical that assumed the claimant could lift up to 20 pounds frequently along with

7

the other limitations in the residual functional capacity. “[I]ndividual occupations

8

classified as medium work vary in exertional demands from just above the light work

9

requirements to the full range of medium work.” Social Security Ruling 83-14, 1983

10

SSR 33, *14. It is unknown on this record whether a limitation to frequent lifting/carrying

11

up to 20 pounds would materially erode the size of the remaining occupational base of

12

medium work, or whether there were jobs at the light level at step five of the sequential

13

analysis. See id. It is also possible that the ALJ would find Lopez capable of

14

lifting/carrying up to 25 pounds frequently notwithstanding Dr. Hoang’s opinion.

15

Accordingly, the matter will be remanded for further proceedings.

16

IV.

17

ORDER

18
19

IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and
the matter is remanded for further proceedings consistent with this opinion.

20
21

DATED: November 29, 2017
ALICIA G. ROSENBERG
United States Magistrate Judge

22
23
24
25
26
27
28
6