Martin Bernard Pearson v. Nancy A. Berryhill

Filing 22

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARTIN BERNARD PEARSON,

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

NO. ED CV 17-563-E

MEMORANDUM OPINION
AND ORDER OF REMAND

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Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

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HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary

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judgment are denied, and this matter is remanded for further

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administrative action consistent with this Opinion.

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PROCEEDINGS

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Plaintiff filed a Complaint on March 23, 2017, seeking review of

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the Commissioner’s denial of disability benefits.

The parties filed a

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consent to proceed before a United States Magistrate Judge on

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April 20, 2017.

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Plaintiff filed a motion for summary judgment on August 25, 2017.

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Defendant filed a motion for summary judgment on September 26, 2017.

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The Court has taken both motions under submission without oral

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argument.

See L.R. 7-15; “Order,” filed March 28, 2017.

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BACKGROUND

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Plaintiff asserts disability since November 28, 2013, based on

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alleged physical and mental impairments including “bipolar depressive

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disorder” for which Plaintiff takes Lithium and Seroquel (Quetiapine)

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(Administrative Record (“A.R.”) 29, 34-35, 39, 45, 58-59, 62, 129,

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160, 163, 166, 194, 196, 202, 204, 242-43, 251).

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On initial evaluation on March 12, 2014, and on reconsideration

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on June 10, 2014, non-examining state agency review physicians looked

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at some of the medical records and opined that Plaintiff has a severe

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affective disorder and, due to his depressive symptoms, has moderate

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limitations in his ability to: (1) understand, remember and carry out

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detailed instructions; (2) maintain attention and concentration for

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extended periods; (3) ask simple questions or request assistance; and

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(4) accept instructions and respond appropriately to criticism from

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supervisors (A.R. 45-54, 60-65, 67-69).

These physicians opined:

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[Plaintiff] retains the mental capacity for persisting,

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concentrating, and paying attention in the completion of

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simple, routine tasks on a sustained basis.

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relate to coworkers and supervisors on a brief and

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superficial level.

He is able to

He is able to adapt to routine changes
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in a work setting.

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(A.R. 54, 69).

Reportedly, there were no opinions from any medical

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sources for the state agency physicians to review (A.R. 54, 64-65).

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The Administrative Law Judge (“ALJ”) gave “little weight” to the

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opinions of the state agency physicians and found that Plaintiff has

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no severe mental impairment (A.R. 16, 20).1

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supporting mental health medical opinions, the ALJ found that

In the absence of any

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Plaintiff’s retains a residual functional capacity for a limited range

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of light work with the following non-exertional abilities/limits:

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. . . capable of moderately complex tasks up to 4-6 steps;

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can attend work without significant limitation; no need for

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special supervision; can work in proximity to others without

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distraction; able to make moderately complex work-related

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decisions; there would be no interruption from

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psychologically based symptoms; ability to interact with

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supervisors, coworkers, and the general public limited to

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The ALJ reasoned that the state agency physicians’
opinions were “internally inconsistent and overly restrictive,”
because: (1) Plaintiff has a college degree and assertedly worked
in complex jobs until he received his “VA” (Department of
Veteran’s Affairs) disability; (2) the VA records allegedly show
“minimal mental health treatment” and note that Plaintiff had a
Global Assessment of Functioning (“GAF”) score of 64 “which is
near normal functioning”; and (3) Plaintiff assertedly declined
psychological therapy one time (A.R. 20). The ALJ elsewhere
stated that Plaintiff assertedly declined therapy until 2014, and
his compliance with psychotropic medications allegedly was
“questionable” because his Lithium assertedly “was below
therapeutic values” (A.R. 21).
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frequent, not constant.

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(A.R. 18, 20 (adopting physical limitations found by orthopedic

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consultative examiner at A.R. 380-84)).

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with this residual functional capacity could perform Plaintiff’s past

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relevant work as a sales representative (A.R. 22 (adopting vocational

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expert testimony at 41-42)).

The ALJ found that a person

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The ALJ denied benefits (A.R. 22-23).

The Appeals Council denied

review (A.R. 2-6).

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the

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Administration’s decision to determine if: (1) the Administration’s

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findings are supported by substantial evidence; and (2) the

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Administration used correct legal standards.

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Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

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499 F.3d 1071, 1074 (9th Cir. 2007).

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relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.”

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(1971) (citation and quotations omitted); see Widmark v. Barnhart,

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454 F.3d 1063, 1067 (9th Cir. 2006).

See Carmickle v.

Substantial evidence is “such

Richardson v. Perales, 402 U.S. 389, 401

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If the evidence can support either outcome, the court may

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not substitute its judgment for that of the ALJ.

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Commissioner’s decision cannot be affirmed simply by

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isolating a specific quantum of supporting evidence.
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But the

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Rather, a court must consider the record as a whole,

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weighing both evidence that supports and evidence that

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detracts from the [administrative] conclusion.

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and

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quotations omitted).

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DISCUSSION

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Plaintiff asserts, inter alia, that the ALJ erred in connection

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with determining Plaintiff’s mental residual functional capacity.

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For

the reasons discussed herein, the Court agrees.

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A.

Summary of the Relevant Medical Record

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The record of Plaintiff’s medical treatment consists of

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documentation from the Department of Veteran’s Affairs (“VA”) (A.R.

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235-379).

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that Plaintiff made psychiatric visits for medication management and

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“supportive” treatment from April 2012 through at least May 2014, at

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which time the VA found Plaintiff 100 percent mentally disabled (id.).

As detailed below, available VA treatment notes indicate

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On April 17, 2012, Plaintiff presented to staff psychiatrist, Dr.

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Karole Avila (A.R. 291).

Plaintiff reportedly was compliant with

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taking Lithium and Quetiapine as prescribed, and Plaintiff denied any

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anger, racing thoughts, hallucinations, or persistent mania or

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depression (A.R. 291).

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remission, refilled Plaintiff’s medications, and ordered Lithium level

Dr. Avila diagnosed bipolar disorder, in

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testing (A.R. 291).

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On October 22, 2012, Plaintiff returned, reporting he was

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“stable” and compliant with taking Lithium and Quetiapine as

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prescribed (A.R. 282-83).

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for a euthymic mood (A.R. 283).

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assigned a Global Assessment of Functioning (“GAF”) score of 64, and

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continued Plaintiff’s medications (A.R. 283).

Mental status examination was normal except
Dr. Avila diagnosed bipolar disorder,

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On March 18, 2013, Plaintiff returned, reporting frustration,

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irritability, short temper, sadness, worry, and anger (A.R. 275-76).

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Plaintiff again reportedly was compliant with taking his medications

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(A.R. 276).

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ordered Lithium level testing (A.R. 276).

Dr. Avila increased Plaintiff’s Lithium dosage and

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The next mental health treatment note is dated November 12, 2013,

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when Plaintiff presented to a nurse practitioner (A.R. 264-68).

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Plaintiff reported his mood was “fairly stable,” but complained of

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persistent cognitive difficulties, irritability, and anger (A.R. 264-

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68).

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continued as approved by Dr. Lynnetta Skoretz (A.R. 265, 267-68).

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Plaintiff was referred for psychotherapy and Lithium level testing

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(A.R. 266-67).

Plaintiff said he was taking Lithium and Quetiapine, which were

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A follow-up mental health treatment note dated January 7, 2014,

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contains the same patient complaints as the November 12, 2013 note

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(A.R. 250-53).

Plaintiff reportedly was taking Lithium and Quetiapine

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(A.R. 251-52).

On testing, his Lithium level was “within the
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therapeutic range” (A.R. 252).

His provider discussed the need for

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psychotherapy and Plaintiff reportedly was “more open to that option”

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(A.R. 252).

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and it was noted to consider adding either Bupropion or Abilify at the

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next visit (A.R. 253).

Again, Plaintiff’s Lithium and Quetiapine were continued,

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The next mental health treatment note is for an “initial” mental

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health treatment plan dated March 6, 2014, from a team of

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psychologists and a nurse practitioner (A.R. 361-63).

Plaintiff

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reported hearing a voice commenting on his life when in a manic state,

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and said his mood had been unstable in that he was depressed and

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irritable (A.R. 362-63).

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disorder and indicated Plaintiff would have medication management as

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an intervention (A.R. 362-63).

The treatment team diagnosed bipolar

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On March 19, 2014, Plaintiff returned to a nurse practitioner for

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a follow-up evaluation (A.R. 347-51).

Plaintiff reported his mood was

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“fairly stable” and his sleep quality was good, but he said he was not

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sleeping enough and was having persistent cognitive difficulties along

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with irritability and anger (A.R. 349).

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within the therapeutic range (A.R. 349).

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attending stress management classes (A.R. 349).2

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increased and his Quetiapine was continued (A.R. 350).

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His last Lithium level was
He had just started
His Lithium was

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Treatment notes indicate that Plaintiff attended group
or individual psychotherapy or other mental health classes on
March 14, 2014, March 21, 2014, March 28, 2014, April 4, 2014,
April 11, 2014, April 25, 2014, and May 16, 2014 (A.R. 307-08,
310-11, 324-26, 344-47, 353-54).
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On May 21, 2014, Plaintiff returned for a follow-up evaluation

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(A.R. 321-24).

Plaintiff reported that his mood was more stable,

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sleep and short-term memory were better, and his anxiety was down

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since the last medication change (A.R. 322).

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attending stress management classes and wanted to continue his

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medications (A.R. 323).

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approved by Dr. Skoretz (A.R. 323-24).

He said he was still

His Lithium and Quetiapine were continued as

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The VA issued a “Rating Decision” dated May 21, 2014, finding

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Plaintiff was entitled to “individual unemployability” with a 100

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percent disability rating as of November 22, 2013, based on, inter

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alia: (1) a “VA psychiatric examination, dated November 5, 2013,”

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which reportedly indicated Plaintiff’s work hours had been reduced to

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six hours per week, and which reportedly showed Plaintiff has

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“difficulty in establishing and maintaining effective work and social

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relationships as well as difficulty in adapting to stressful

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circumstances, including work or a worklike setting”; (2) a “VA

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psychiatric examination dated January 3, 2014,” which reportedly

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showed Plaintiff has symptoms of “near-continuous panic or depression

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affecting the ability to function independently, appropriately and

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effectively”; and (3) “[t]he bipolar disorder symptoms cause

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clinically significant distress or impairment in social, occupational,

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or other important areas of functioning” (A.R. 235-36).

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“psychiatric examinations” referenced above and in the VA Rating

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Decision appear to be absent from the Administrative Record.

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The two

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See A.R. 242-379.3

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B.

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Substantial Evidence Does Not Support the ALJ’s Mental
Residual Functional Capacity Assessment.

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The ALJ’s assessment of Plaintiff’s mental limitations is not

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supported by substantial evidence in the present record.

As

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summarized above, the state agency physicians found greater

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limitations than the ALJ found to exist, and the VA concluded that

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psychiatric examinations (which appear to be absent from the record)

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indicated Plaintiff has significant work-related limitations.

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ALJ’s assessment of Plaintiff’s mental limitations is unsupported by

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any expert medical opinion.

The

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The ALJ rejected the VA Rating Decision: (1) as assertedly based

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on Plaintiff’s subjective complaints; (2) as purportedly not based on

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a doctor’s residual functional capacity assessment; and (3) because of

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Plaintiff’s “minimal treatment” for mental health.

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The Court observes the following regarding the ALJ’s reasoning.

See A.R. 19.

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First, an ALJ sometimes may reject a treating physician’s opinion

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if the opinion is based “to a large extent” on a claimant’s properly

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discounted self-reports.

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Admin., 169 F.3d 595, 602 (9th Cir. 1999).

See Morgan v. Commissioner of Social Sec.
However, “the rule

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In purporting to discuss these examinations, the ALJ
cited “Exhibit 1F/10-13, 25-27,” but the cited portions of the
record do not include any November 5, 2013 examination or any
January 3, 2014 examination (A.R. 19, 250-53, 265-67).
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allowing an ALJ to reject [medical] opinions based on [the claimant’s]

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self-reports does not apply in the same manner to opinions regarding

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mental illness.”

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2017).

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which the Rating Decision was based appear not to be included in the

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record.

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prescribed Lithium and Seroquel, appears to have been greater than

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“minimal” treatment.

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Lithium and Seroquel connotes mental health treatment which is not

See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir.

Second, as previously observed, two psychiatric evaluations on

Third, Plaintiff’s mental health treatment, which included

Courts have recognized that the prescription of

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“conservative” within the meaning of social security jurisprudence.

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Compare Barrino v. Berryhill, 2017 WL 977670, at *5, 7, 9 (E.D. Cal.

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Mar. 14, 2017) (where plaintiff was diagnosed with bipolar disorder

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and prescribed Lithium, attended regular counseling sessions, and had

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Transcranial Magnetic Stimulation, his treatment was “far from

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conservative”); Garrett v. Berryhill, 2017 WL 950467, at *8 & n.6

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(E.D. Cal. Mar. 10, 2017) (treatment with psychotropic drugs including

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Seroquel was not routine or conservative); Sandberg v. Commissioner of

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the Social Sec. Admin., 2015 WL 2449745, at *6 (D. Or. May 22, 2015)

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(“Prescription medicine such as Lithium is certainly not conservative

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in the same manner as over-the-counter pain relievers.”)

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(distinguishing Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007),

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cert. denied, 552 U.S. 1141 (2008)); Johnson v. Colvin, 2014 WL

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2586886, at *5 (C.D. Cal. June 7, 2014), adopted, 2014 WL 2589777

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(C.D. Cal. June 7, 2014) (prescription of Seroquel is not

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“conservative” mental health treatment).

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reasoning prevent the Court from upholding the ALJ’s rejection of the

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VA Rating Decision on the present record.

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298 F.3d 1072, 1076 (9th Cir. 2002) (ALJ may give less than “great
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These flaws in the ALJ’s

See McCartey v. Massanari,

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weight” to a VA disability rating only if the ALJ states “persuasive,

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specific, valid reasons for doing so that are supported by the

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record”).

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There are no medical source opinions supporting the conclusion

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that Plaintiff possesses the mental functional capacity the ALJ found

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to exist.

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medical lay opinion to define Plaintiff’s functional capacity.

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cannot properly rely on the ALJ’s own lay knowledge to make medical

Instead, the ALJ appears to have relied on his own nonAn ALJ

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interpretations of examination results or to determine the severity of

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medically determinable impairments.

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1094, 1102-03 (9th Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 81 (2d

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Cir. 1998); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996); Day v.

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Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).

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medical assistance, the ALJ could not competently translate the

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medical evidence in this case into a mental residual functional

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capacity assessment.

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residual functional capacity assessment cannot stand in the absence of

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evidentiary support); Rohan v. Chater, 98 F.3d at 970 (“ALJs must not

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succumb to the temptation to play doctor and make their own

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independent medical findings”); Day v. Weinberger, 522 F.2d at 1156

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(an ALJ is forbidden from making his or her own medical assessment

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beyond that demonstrated by the record).

See Tackett v. Apfel, 180 F.3d

Absent expert

See Tackett v. Apfel, 180 F.3d at 1102-03 (ALJ’s

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Rather than adopting his own lay assessment of Plaintiff’s

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limitations, the ALJ should have ordered an examination and evaluation

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of Plaintiff by a consultative mental health specialist.

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also Reed v. Massanari, 270 F.3d 838, 843 (9th Cir. 2001) (where
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See id.; see

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available medical evidence is insufficient to determine the severity

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of the claimant’s impairment, the ALJ should order a consultative

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examination by a specialist); accord, Kish v. Colvin, 552 Fed. App’x

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650 (2014); see generally Mayes v. Massanari, 276 F.3d 453, 459-60

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(9th Cir. 2001) (ALJ’s duty to develop the record further is triggered

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“when there is ambiguous evidence or when the record is inadequate to

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allow for the proper evaluation of the evidence”) (citation omitted);

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Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (“[T]he ALJ has a

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special duty to fully and fairly develop the record to assure the

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claimant’s interests are considered.

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This duty exists even when the

claimant is represented by counsel.”).

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The Court is unable to deem the errors in the present case to

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have been harmless.

See Treichler v. Commissioner, 775 F.3d 1090,

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1105 (9th Cir. 2014) (“Where, as in this case, an ALJ makes a legal

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error, but the record is uncertain and ambiguous, the proper approach

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is to remand the case to the agency”); see also Molina v. Astrue, 674

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F.3d 1104, 1115 (9th Cir. 2012) (an error “is harmless where it is

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inconsequential to the ultimate non-disability determination”)

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(citations and quotations omitted); McLeod v. Astrue, 640 F.3d 881,

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887 (9th Cir. 2011) (error not harmless where “the reviewing court can

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determine from the ‘circumstances of the case’ that further

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administrative review is needed to determine whether there was

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prejudice from the error”).

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disability determinations suggest that a person with the limitations

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the state agency physicians found to exist could perform other work

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(referencing the grids), no vocational expert testimony addresses this

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suggestion.

While the initial and reconsideration

See A.R. 41-43 (vocation expert testimony); see also
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Moore v. Apfel, 216 F.3d 864, 870 (9th Cir. 2000) (“When a claimant

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suffers from both exertional and nonexertional limitations, the grids

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are only a framework and a [vocational expert] must be consulted.”).

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Remand is appropriate because the circumstances of this case

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suggest that further administrative review could remedy the errors

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discussed herein.

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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

McLeod v. Astrue, 640 F.3d at 888; see also INS v.

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investigation or explanation, except in rare circumstances); Dominguez

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v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district

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court concludes that further administrative proceedings would serve no

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useful purpose, it may not remand with a direction to provide

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benefits”); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand

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for further administrative proceedings is the proper remedy “in all

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but the rarest cases”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th

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Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further

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proceedings rather than for the immediate payment of benefits is

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appropriate where there are “sufficient unanswered questions in the

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record”).

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present record.

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There remain significant unanswered questions in the

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CONCLUSION

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For all of the foregoing reasons,4 Plaintiff’s and Defendant’s

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motions for summary judgment are denied and this matter is remanded

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for further administrative action consistent with this Opinion.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: October 25, 2017.

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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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The Court has not reached any other issue raised by
Plaintiff except insofar as to determine that reversal with a
directive for the immediate payment of benefits would not be
appropriate at this time. “[E]valuation of the record as a whole
creates serious doubt that [Plaintiff] is in fact disabled.”
Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014).
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