Petra Rios v. Carolyn W. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER by Magistrate Judge Alka Sagar. (mz)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-SOUTHERN DIVISION 11 12 13 14 15 16 17 18 PETRA RIOS, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL,1 ) Acting Commissioner of the ) Social Security Administration,) ) Defendant. ) ) Case No. SA CV 16-01049-AS MEMORANDUM OPINION AND ORDER OF REMAND 19 20 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED 21 that this matter be remanded for further administrative action 22 consistent with this Opinion. 23 PROCEEDINGS 24 25 26 27 28 On June 6, 2016, Plaintiff filed a Complaint seeking review of the denial of her application for Disability Insurance Benefits. 1 (Docket Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration and is substituted in for Acting Commissioner Caroyln W. Colvin in this case. See 42 U.S.C. § 205(g). 1 Entry No. 1). The parties have consented to proceed before the 2 undersigned United States Magistrate Judge. (Docket Entry Nos. 11, 13). 3 On October 14, 2016, Defendant filed an Answer along with the 4 Administrative Record (“AR”). (Docket Entry Nos. 16-17). On January 5 19, 2017, the parties filed a Joint Stipulation (“Joint Stip.”) setting 6 forth their respective positions regarding Plaintiff’s claims. (Docket 7 Entry No. 18). 8 9 The Court has taken this matter under submission without oral 10 argument. See C.D. Cal. L.R. 7-15; “Order Re: Procedures In Social 11 Security Case,” filed June 7, 2016 (Docket Entry No. 9). 12 13 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 14 15 On March 5, 2013, Plaintiff, formerly employed as a garment labeler 16 and as a mail room person in a cosmetic warehouse (see AR 53-54, 204, 17 213-14, 235-36), filed an application for Disability Insurance Benefits 18 alleging an inability to work because of a disability since March 12, 19 2009. (See AR 192-93). 20 Judge (“ALJ”), Helen On December 2, 2014, the Administrative Law E. Hesse, heard testimony from Plaintiff 21 (represented by counsel), and vocational expert Susan Allison. 22 Spanish interpreter was present for Plaintiff. (See AR 39-72). A On 23 February 11, 2015, the ALJ issued a decision denying Plaintiff’s 24 application. (See AR 20-29). After determining that Plaintiff had 25 severe impairments –- ”degenerative disc disease of the lumbar and 26 cervical spine; bilateral shoulder impingement syndrome, status post 27 arthroscopy with manipulation for frozen shoulder; chronic pain 28 syndrome; mild depression; bilateral knee chondromalacia; and thoracic outlet syndrome” (AR 22-24) --, the ALJ found that Plaintiff had the 2 1 residual functional capacity (“RFC”)2 to perform light work3 with the 2 following limitations: sitting, standing and walking for 4 hours in an 3 8-hour workday with normal breaks; lifting and carrying 20 pounds 4 occasionally and 10 pounds frquently; climbing stairs, bending, 5 balancing, stooping, kneeling, crouching, or crawling occasionally; 6 precluded from climbing ropes, ladders, or scaffolding; performing gross 7 and fine manipulation frequently, but not continuously; peforming 8 overhead reaching with both upper extremities occcasionally; performing 9 moderately complex tasks with Specific Vocational Preparation (“SVP”) 3 10 to 4 involving no hypervigilence; precluded from being in charge of 11 safety operation of others; and precluded from intense interpersonal 12 interactions such as taking complaints or encounters similar to those 13 experienced by law enforcement or emergency personnel. (AR 24-29). 14 Finding that Plaintiff was capable of performing past relevant work as 15 a marker/tagger as actually performed and as generally performed, the 16 ALJ found that Plaintiff was not disabled within the meaning of the 17 Social Security Act. (AR 29). 18 19 Plaintiff requested that the Appeals Council review the ALJ’s 20 Decision. (See AR 9-13). The request was denied on April 19, 2016. 21 (See AR 1-5). The ALJ’s Decision then became the final decision of the 22 Commissioner, allowing this Court to review the decision. See 42 U.S.C. 23 §§ 405(g), 1383(c). 24 25 2 A Residual Functional Capacity is what a claimant can still do See 20 C.F.R. § 404.1545(a)(1). 26 despite existing exertional and nonexertional limitations. 27 28 3 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). 3 1 PLAINTIFF’S CONTENTIONS 2 3 Plaintiff alleges that the ALJ erred in: (1) failing to give proper 4 weight to Plaintiff’s treating physicians and evidence favorable to 5 Plaintiff; (2) finding that Plaintiff was literate in English; and (3) 6 finding that Plaintiff was not fully credible with respect to her 7 testimony regarding her subjective pain and limitations. (See Joint 8 Stip. at 4-9, 16-27, 33). 9 10 DISCUSSION 11 12 After consideration of the record as a whole, the Court finds that 13 Plaintiff’s first claim of error (in part) warrants a remand for further 14 consideration. Since the Court is remanding the matter based on 15 Plaintiff’s first claim of error (in part), the Court will not address 16 Plaintiff’s first claim of error (in part), second claim of error, or 17 third claim of error. 18 19 A. 20 The ALJ Did Not Properly Reject the Opinion of Plaintiff’s Treating Physician, Lawrence Miller, M.D., and Examining Physician Ernest Bagner, III, M.D. 21 22 23 24 25 26 Plaintiff asserts that the ALJ failed to provide specific and legitimate reasons for rejecting the opinions of Plaintiff’s treating physicians, Drs. Miller, Schmidt, Kahn, and Larsen. Plaintiff further asserts that the ALJ failed to proved a proper reason for rejecting the opinion of examining physician Dr. Bagner 27 28 4 (See Joint Stip. at 4-9, 16- 1 17).4 Defendant asserts that the ALJ provided valid reasons for giving 2 Plaintiff’s treating physicians’ and examining physician’s opinions 3 little weight. (See Joint Stip. at 9-16). 4 5 Although a treating physician’s opinion is generally afforded the 6 greatest weight in disability cases, it is not binding on an ALJ with 7 respect to the existence of an impairment or the ultimate determination 8 of disability. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 9 1195 (9th Cir. 2004); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 10 1989). The weight given a treating physician’s opinion depends on 11 whether it is supported by sufficient medical data and is consistent 12 with other evidence in the record. 20 C.F.R. § 416.927(b)-(d). 13 “Generally, a treating physician’s opinion carries more weight than an 14 examining physician’s, and an examining physician’s opinion carries more 15 weight than a reviewing physician’s.” Holohan v. Massanari, 246 F.3d 16 1195, 1202 (9th Cir. 2001); see also Lester v. Chater, 81 F.3d 821, 830 17 (9th Cir. 1995). 18 19 If a treating or examining doctor’s opinion is not contradicted by 20 another doctor, the ALJ can reject the opinion only for “clear and 21 convincing reasons.” Carmickle v. Commissioner, 533 F.3d 1155, 1164 22 (9th Cir. 2008); Lester v. Chater, 81 F.3d at 830-31. If the treating 23 or examining doctor’s opinion is contradicted by another doctor, the ALJ 24 must provide “specific and legitimate reasons” for rejecting the 25 26 27 28 4 These were the treating physicians and examining physician Plaintiff specifically identified. The Court’s analysis of Plaintiff’s claim will be limited to the opinions of Drs. Miller and Bagner. 5 1 opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Lester v. 2 Chater, supra. 3 4 Dr. Miller 5 6 Lawrence Miller, M.D., a pain management specialist, treated 7 Plaintiff as part of her California Worker’s Compensation claim from 8 August 22, 2011 to December 9, 2013. (See AR 564-676, 877-89). 9 10 In an Initial Evaluation Report, Progress Notes and/or 11 Supplementary Reports dated August 22, 2011, October 3, 2011, October 12 31, 2011, December 19, 2011, January 30, 2012 and February 27, 2012, Dr. 13 Miller diagnosed Plaintiff with right shoulder internal derangement; 14 chronic cervical discogenic disease; chronic lumbar discogenic disease 15 with possible left lumbar radiculitis; and chronic pain syndrome with 16 anxiety, depression and sleep disturbance. (See AR 603-08, 610-17, 65817 76). In Supplementary Reports dated April 9, 2012 and May 21, 2012, 18 Dr. Miller gave Plaintiff the same diagnoses, except with the added 19 diagnosis of bruxism. (See AR 597-602). In Progress Notes and/or 20 Supplementary Reports dated July 2, 2012, August 13, 2012, and November 21 12, 2012, Dr. Miller gave Plaintiff the same diagnoses, but added to 22 rule out right thoracic outlet syndrome. (See AR 581-82, 590-91, 594- 23 95). In Progress Notes dated January 21, 2013 and January 28, 2013, and 24 March 18, 2013, Dr. Miller gave Plaintiff the same diagnoses, except for 25 the definitive diagnosis of right thoracic outlet syndrome. 26 570-73, 579-80). (See AR In Progress Notes dated May 13, 2013, June 24, 2013 27 and August 5, 2013, Dr. Miller gave Plaintiff the same diagnoses, except 28 for the added diagnosis of bilateral 6 knee patellofemoral 1 arthralgia/chondromalacia. (See AR 564-69). On each occasion, Dr. 2 Miller found Petitioner’s disability status to be Totally Temporarily 3 Disabled. (See AR 564-73,579-82, 590-91, 594-95, 597-608, 610-17, 6584 76). 5 6 In a Report dated December 9, 2013, Dr. Miller diagnosed Plaintiff 7 with bilateral shoulder internal derangement, cervical discognenic 8 disease, lumbar discogenic disease, right thoracic outlet syndrome, 9 bilateral knee patellofemoral arthralgia/chondromalacia, and chronic 10 pain syndrome with depression, bruxism and sleep disorder, and found 11 Plaintiff’s disability status to be permanent and stationary. (See AR 12 877-89). 13 14 In a Physician’s Source Statement dated November 25, 2014, Dr. 15 Miller opined that Plaintiff had the following physical capacity: 16 Plaintiff is precluded from sitting, standing, lifting, fine 17 manipulation and gross manipulation for 20 percent or more of an 8-hour 18 workday; Plaintiff can use a keyboard 15 minutes per hour; based on 19 Plaintiff’s physical and/or mental limitations, Plaintiff would be 20 unable to perform a job (“unable to perform work and/or away from [the] 21 work environment) more than 30 percent of an 8-hour workday, 5 days a 22 week; Plaintiff is likely to be absent from work an average of 5 days or 23 more per month; Plaintiff is likely to be unable to complete an 8-hour 24 workday an average of 6 days per month; and compared to an average 25 worker, Plaintiff could be expected to perform a job 8 hours per day, 5 26 days per week, on a sustained basis less than 50 percent. (See AR 890). 27 28 7 1 After reciting the first portion of Dr. Miller’s opinions about 2 Plaintiff’s functional limitations (see AR 27), the ALJ addressed Dr. 3 Miller’s opinions as follows: “The opinions of Dr. Miller are given 4 little weight since limitation of ‘20% or more of an 8 hour’ is vague 5 and unclear in the Social Security disability claims. For instance, 20% 6 of 8 hours is 1.6 hours, which leaves 6.4 hours in an 8 hour day for the 7 claimant to perform sitting, standing, lifting, and fine/gross 8 manipulation. However, it is not clear how much “more of an 8 hour’ the 9 claimant would be restricted from performing such activities.” (AR 27).5 10 11 Here, the ALJ erred in failing to translate Dr. Miller’s opinions 12 about Plaintiff’s limitations in the Workers’ Compensation context into 13 the Social Security context. See Booth v. Barnhart, 181 F.Supp.2d 1099, 14 1105-06 (C.D. Cal. 2002) (“[T]he ALJ may not disregard a physician’s 15 medical opinion simply . . . because it is couched in the terminology 16 used in such proceedings.”; “The ALJ must ‘translate’ terms of art 17 contained in such medical opinions into the corresponding Social 18 Security terminology in order to accurately assess the implications of 19 those opinions for the Social Security disability determination.”); 20 Vasquez-Pamplona v. Colvin, 2015 WL 5796994, *4 (C.D. Cal. Sept. 30, 21 2015) (“A Social Security decision must, however, reflect that the ALJ 22 properly considered the pertinent distinctions between the state and 23 federal statutory schemes, and that the ALJ accurately assessed the 24 implications medical findings drawn from a worker’s compensation opinion 25 may have for purposes of a Social Security disability determination.”; 26 5 The rejecting Dr. Miller’s 27 opinions (see Court will not consider reasons fornot given by the ALJ in Joint. Stip. at 12, 15) that were See Pinto v. F.3d 840, 28 the Decision. Chenery Corp., Massanari, 249 196 (1947).847-48 (9th Cir. 2001); SEC v. 332 U.S. 194, 8 1 citing Booth v. Barnhart, 181 F.Supp.2d at 1106); see also Lester v. 2 Chater, 81 F.3d at 830 (“[T]he purpose for which medical reports are 3 obtained does not provide a legitimate basis for rejecting them.”). 4 5 Moreover, the ALJ erred in failing to develop the record to 6 determine what Dr. Miller meant when he opined that Plaintiff was 7 precluded from certain activities (sitting, standing, lifting, fine 8 manipulation and gross manipulation) for “20 percent or more of an 89 hour work day”. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 10 1996) (“If the ALJ thought he needed to know the basis of [a doctor’s] 11 opinions in order to evaluate them, he had a duty to conduct an 12 appropriate inquiry, for example, by supoenaing the physicians or 13 submitting further questions to them” or by “continuing the hearing to 14 augment the reocrd”) (citation omitted); see also Tonapetyan v. Halter, 15 242 F.3d 1144, 1150 (9th Cir. 2001) (the ALJ’s duty to develop the 16 record is triggered when there is “ambiguous evidence” or when “the 17 record is inadequate to allow for proper evaluation of the evidence”); 18 Brown v. Heckler, 713 F.2d 441, 441 (9th Cir. 1983) (“In Social Security 19 cases the ALJ has a special duty to fully and fairly develop the record 20 and to assure that the claimant’s interests are considered[,]” even when 21 the claimant is represented by counsel). 22 23 Finally, the ALJ erred in failing to discuss or address Dr. 24 Miller’s other opinions (i.e., Plaintiff was likely to likely to be 25 absent from work an average of 5 days or more per month; Plaintiff was 26 likely to be unable to complete an 8-hour workday an average of 6 days 27 per month). See 20 C.F.R. § 404.1527(c) (“Regardless of its source, we 28 will evaluate every medical opinion we receive.”); Embrey v. Bowen, 849 9 1 F.2d 418, 421 (9th Cir. 1988) (“We have made it clear that the medical 2 opinions of a claimant’s treating physicians are entitled to special 3 weight and that, if the ALJ chooses to disregard the, ‘he must set forth 4 specific, legitimate reasons for doing so, and this decision must be 5 based on substantial evidence.’”) (citation omitted). 6 7 Dr. Bagner 8 9 In a report dated August 2, 2011 (following a psychiatric 10 evaluation), Ernest Bagner, III, M.D., a psychiatrist, diagnosed 11 Plaintiff with major depressive disorder, with physical issues and 12 moderate psychosocial/environmental stressors, and with a Global 13 Assessment Functioning score of 63; and found that Plaintiff had the 14 following functional limitations: mild limitations in maintaining 15 concentration and attention and in completing complex tasks; moderate 16 limitations in handling normal stresses at work, due to depression, and 17 in completing a normal work week without interruption, due to low 18 motivation and nervousness; and no limitations in interacting with 19 supervisors, peers and the public and in completing simple tasks. (See 20 AR 412-15). 21 22 In a report dated August 6, 2013 (following a pscyhiatric 23 evaluation), Dr. Bagner diagnosed Plaintiff with major depressive 24 disorder, with educational, occupational, economic and health problems, 25 and with a Global Assessment Functioning Score of 65; and found that 26 Plaintiff had the following functional limitations: mild limitations in 27 the abilities to follow detailed instructions, to comply with job rules 28 such as safety and attendance, and to respond to changes in a work 10 1 setting; moderate limitations in the abilities to respond to work 2 pressure in a usual work setting, due to depression and nervousness, and 3 to perform daily activities, due to emotional and physical conditions; 4 and no limitations in the abilities to follow simple, oral and written 5 instructions, and to interact appropriately with the public, co-workers 6 and supervisors. (See AR 679-83, 686-90). 7 8 After reciting Dr. Bagner’s opinions (see AR 28), the ALJ addressed 9 Dr. Bagner’s opinions as follows: 10 11 The opinions of Dr. Bagner are given little weight 12 because 13 documenting significant mental conditions, and his own mental 14 status examination showed intact speech, no flight of thought, 15 looseness 16 distractibility, average intelligence, ability to perform 17 serial three, intact judgment and insight, normal reality 18 contact, and no suicidal or homicidal evidence (Exhibit 11F/5; 19 21F/5). there of is no evidence association, of on-going thought psychiatric blocking, or 20 21 (AR 28). 22 23 Contrary to Defendant’s assertion (see Joint. Stip. at 13), Dr. 24 Bagner’s examination findings that (1) Plaintiff had intact speech, no 25 flight of thought, no looseness of association, no thought blocking and 26 no distractibility; (2) Plaintiff was of average intelligence; (3) 27 Plaintiff was ability to perform serial threes; (4) Plaintiff had intact 28 judgment and insight; (5) Plaintiff had normal reality contact, and (6) 11 1 Plaintiff did not have suicidal or ideation (see AR 413-14, 681-82), 2 were not inconsistent with Dr. Bagner’s opinions about Plaintiff’s 3 moderate limitations in her abilities to handle normal stresses at work 4 (due to depression) and to complete a normal work week without 5 interruption (due to low motivation and nervousness). Indeed, the ALJ 6 failed to state how such findings were inconsistent with Dr. Bagner’s 7 opinions. See Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) 8 (“[A]n ALJ errs when he rejects a medical opinion or assigns it little 9 weight while doing nothing more than . . . criticizing it with 10 boilerplate language that fails to offer a substantive basis for his 11 conclusion.”). Moreover, as Plaintiff points out (see Joint. Stip. at 12 681), Dr. Bagner’s opinions appear to have been supported by other 13 examination findings (see AR 413-14 [the August 2, 2011 examination 14 reflected that Plaintiff’s “affect [was] mood congruent,” Plaintiff’s 15 speech was “moderately decreased in volume rate and rhythm,” Plaintiff 16 could only “register one out of three objects after five minutes,” and 17 Plaintiff was unable to do “serial sevens”]; AR 681 [the August 6, 2013 18 examination reflected that Plaintiff’s speech and volume were soft, 19 Plaintiff’s “mood was depressed” and her “[a]ffect were blunted,” and 20 Plaintiff was not able to perform “serial sevens”]). 21 22 Defendant’s contention that “moderate limitations are not evidence 23 of a disabling impairment and are not limitations that need to be 24 presented to a vocational expert” (Joint Stip. at 13-14, citing Hoopai 25 v. Astrue, 499 F.3d 1071, 1076-77 (9th Cir. 2007) and Young v. Heckler, 26 803 F.2d 963, 967 (9th Cir. 1986)) is not relevant to the issue 27 concerning the adequacy of the ALJ’s reasons to give little weight to an 28 12 1 examining psychiatrist’s opinions about a claimant’s moderate 2 limitations. 3 4 Since it does not appear that another doctor has contradicted Dr. 5 Bagner’s opinions about Plaintiff’s moderate limitations, the ALJ has 6 failed to provde “clear and convincing reasons” for giving little weight 7 to Dr. Bagner’s opinions. See Carmickle v. Commissioner, supra; Lester 8 v. Chater, supra. 9 10 B. Remand Is Warranted 11 12 The decision whether to remand for further proceedings or order an 13 immediate award of benefits is within the district court’s discretion. 14 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 15 useful purpose would be served by further administrative proceedings, or 16 where the record has been fully developed, it is appropriate to exercise 17 this discretion to direct an immediate award of benefits. Id. at 1179 18 (“[T]he decision of whether to remand for further proceedings turns upon 19 the likely utility of such proceedings.”). However, where, as here, the 20 circumstances of the case suggest that further administrative review 21 could remedy the Commissioner’s errors, remand is appropriate. McLeod 22 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, supra, 23 211 F.3d at 1179-81. 24 25 Since the ALJ failed to properly assess the opinions of Drs. Miller 26 and Bagner, remand is appropriate. Because outstanding issues must be 27 resolved before a determination of disability can be made, and “when the 28 record as a whole creates serious doubt as to whether the [Plaintiff] 13 1 is, in fact, disabled within the meaning of the Social Security Act,” 2 further administrative proceedings would serve a useful purpose and 3 remedy defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 4 2014)(citations omitted).6 5 6 ORDER 7 8 For the foregoing reasons, the decision of the Commissioner is 9 reversed, and the matter is remanded for further proceedings pursuant to 10 Sentence 4 of 42 U.S.C. § 405(g). 11 12 LET JUDGMENT BE ENTERED ACCORDINGLY. 13 14 DATED: April 21, 2017 15 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 6 The Court has not reached any other issue raised by Plaintiff 22 except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 23 “[E]valuation of the record as a whole creates serious doubt that Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995, Accordingly, the Court declines to rule on Plaintiff’s claims regarding the ALJ’s errors in (1) giving little weight to the opinions of Plaintiff’s other treating physicians (Drs. Schmidt, Kahn and Larsen) (see Joint Stip. at 4-9, 16-17); (2) finding that Plaintiff was literate in English (see Joint Stip. at 4, 17-21); and (3) finding that Plaintiff was not fully credible with respect to her testimony regarding her subjective pain and limitations (see Joint Stip. at 4, 2127, 33). Because this matter is being remanded for further consideration, these issues should also be considered on remand. 24 1021 (2014). 25 26 27 28 14

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