Oscar H. Barcenas v. Carolyn W. Colvin

Filing 35

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-SOUTHERN DIVISION

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OSCAR H. BARCENAS,

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Plaintiff,
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v.
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NANCY A. BERRYHILL,1
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Acting Commissioner of the
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Social Security Administration,)
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Defendant.
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Case No. SACV 16-01311-AS
MEMORANDUM OPINION AND
ORDER OF REMAND

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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.
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PROCEEDINGS

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On July 14, 2016, Plaintiff filed a Complaint seeking review of the
denial
1

of

his

applications

for

Disability

Insurance

Benefits

and

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 Supplemental Security Income.

(Docket Entry No. 1).

The parties have

2 consented to proceed before the undersigned United States Magistrate
3 Judge. (Docket Entry Nos. 15-16). On January 10, 2017, Defendant filed
4 an Answer along with the Administrative Record (“AR”).
5 Nos. 23-24).

(Docket Entry

The parties filed a Joint Stipulation (“Joint Stip.”) on

6 August 29, 2017, setting forth their respective positions regarding
7 Plaintiff’s claims.

(Docket Entry No. 34).

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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 Appeal,” filed August 3, 2016 (Docket Entry No. 13).
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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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On September 6 and 12, 2012, Plaintiff,formerly employed as a

16 graphics printer (see AR 56, 147-55), filed applications for Disability
17 Insurance Benefits and Supplemental Security Income, both alleging a
18 disability since November 10, 2009. (See AR 119-26). On July 15, 2013,
19 the Administrative Law Judge (“ALJ”), Frederick C. Michaud, heard
20 testimony from Plaintiff (represented by counsel) and vocational expert
21 Katie Macy-Powers.

(See AR 53-66).

On December 19, 2013, the ALJ

22 issued a decision denying Plaintiff’s applications.

(See AR 15-28).

23 After determining that Plaintiff had severe combination of impairments
24 –- “left knee arthralgia, lumbar and cervical spondylosis, and obesity”
25 (AR 17-19)2 –- but did not have an impairment or combination of
26 impairments that met or medically equaled the severity of one of the
27 Listed Impairments (AR 20), the ALJ found that Plaintiff had the
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The ALJ determined that Plaintiff’s mental impairment of
dysthymia is nonsevere. (See AR 17-19).
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1 residual functional capacity (“RFC”)3 to perform a full range of medium
2 work.4

(AR 20-28).

Finding that Plaintiff was capable of performing

3 past relevant work as a printer as generally performed, the ALJ found
4 that Plaintiff was not disabled within the meaning of the Social
5 Security Act.

(AR 28).

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Plaintiff requested that the Appeals Council review the ALJ’s

8 Decision. (See AR 42-43). The request was denied on May 20, 2016. (See
9 AR 1-5).

The ALJ’s Decision then became the final decision of the

10 Commissioner, allowing this Court to review the decision. See 42 U.S.C.
11 §§ 405(g), 1383(c).
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PLAINTIFF’S CONTENTIONS

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Plaintiff alleges that the ALJ erred in failing to (1) properly

16 consider the opinion of Plaintiff’s examining physician, Dr. Berman, and
17 (2) properly determine that Plaintiff could perform the past relevant
18 work.

(See Joint Stip. at 4-8, 11-15, 17-19).

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DISCUSSION

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After consideration of the record as a whole, the Court finds that

23 Plaintiff’s first claim of error warrants a remand for further
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A Residual Functional Capacity is what a claimant can still do
See 20
C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).

26 despite existing exertional and nonexertional limitations.
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“Medium work involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds.”
20 C.F.R. §§ 404.1567(c), 416.967(c).
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1 consideration.

Since the Court is remanding the matter based on

2 Plaintiff’s first claim of error, the Court will not address Plaintiff’s
3 second claim of error.
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5 A.
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The ALJ Did Not Properly Reject the Opinion
Examining Physician, Jeffrey A. Berman, M.D.

of

Plaintiff’s

Plaintiff asserts that the ALJ failed to provide any reasons, or

8 even specific and legitimate reasons, for rejecting the opinion of
9 Plaintiff’s examining physician, Dr. Berman.

(See Joint Stip. at 4-8,

10 10-13). Defendant asserts that the ALJ provided sufficient reasons for
11 rejecting the opinion of Dr. Berman.

(See Joint Stip. at 8-11).

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An ALJ must take into account all medical opinions of record.

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14 C.F.R. §§ 404.1527(b), 416.927(b). “Generally, a treating physician’s
15 opinion carries more weight than an examining physician’s, and an
16 examining physician’s opinion carries more weight than a reviewing
17 physician’s.”

Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir.

18 2001); see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
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If a treating or examining doctor’s opinion is not contradicted by

21 another doctor, the ALJ can reject the opinion only for “clear and
22 convincing reasons.” Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d
23 1155, 1164 (9th Cir. 2008); Lester v. Chater, 81 F.3d at 830-31. If the
24 treating or examining doctor’s opinion is contradicted by another
25 doctor, the ALJ must provide “specific and legitimate reasons” for
26 rejecting the opinion.

Orn v. Astrue, 495 F.3d 625, 632 (9th Cir.

27 2007); Lester v. Chater, supra.
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On July 20, 2010, Jeffrey A. Berman, M.D. (an orthopaedic surgeon),

2 who initially evaluated Plaintiff in November 2006, prepared a report
3 following an agreed medical reevaluation of Plaintiff. (See AR 262-77).5
4 Plaintiff complained of neck pain, left shoulder pain, mid-back pain,
5 lower back pain, lower extremity pain, and sleep issues.

(AR 264-65).

6 Plaintiff stated he had difficulty with daily activities such as
7 bathing, dressing, showering and self-hygiene activities.

(AR 265).

8 Based on the results of the physical examination (see AR 265-71) and
9 based on the review of Plaintiff’s medical records (see AR 271-73), Dr.
10 Berman opined inter alia that Plaintiff’s status was permanent and
11 stationary with maximum medical improvement, Plaintiff should avoid
12 heavy lifting and repetitive motion of the neck (because of his cervical
13 spine), Plaintiff should avoid heavy lifting and repetitive bending and
14 stooping (because of his lumbar spine), Plaintiff should avoid heavy
15 work activities and overhead activities (because of his left shoulder),
16 Plaintiff had combined whole person impairments totaling 43 percent, and
17 that Plaintiff cannot return to his previous job.

(AR 273-77).

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In the Decision, the ALJ does not mention Dr. Berman by name, nor

20 does he mention or discuss Dr. Berman’s July 20, 2010 report. Although,
21 as Defendant points out (see Joint Stip. at 9), the ALJ did note
22 “[w]orker’s compensation record from 2010-January 2011 reveal that the
23 claimant reported neck pain, back pain, shoulder pain, and knee pain”
24 (AR 21), it is clear that the ALJ did not consider or address Dr.
25 Berman’s opinion in the July 20, 2010 report:

First, the ALJ’s

26 discussion of Plaintiff’s 2010-2011 worker’s compensation records did
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It is not clear whether the entire July 20, 2010 report is
contained in the administrative record.
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1 not mention the complaints that Plaintiff made to Dr. Berman about mid2 back pain and sleep issues).

Second, the ALJ cited only to Exhibit 10

3 (see AR 21) in his discussion of Plaintiff’s 2010-2011 worker’s
4 compensation records, and did not cite to the exhibit where Dr. Berman’s
5 July 20, 2010 report is located (see AR 262-77 [Exhibit 9F/16-31]).
6 Finally,

the

ALJ

discussion

of

Plaintiff’s

2007-2008

worker’s

7 compensation records also failed to cite to Dr. Berman’s July 20, 2010
8 report. (See AR 21).

Since the ALJ did not acknowledge or address Dr.

9 Berman’s July 20, 2010 report, the ALJ did not provide any reasons for
10 rejecting Dr. Berman’s opinion in that report.6 Simply put, the ALJ did
11 not provide any reasons, much less “specific and legitimate” reasons or
12 “clear and convincing” reasons, for rejecting Dr. Berman’s opinion.
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To the extent that the ALJ may have rejected Dr. Berman’s opinion

15 because it included Workers’ Compensation terms, the ALJ erred in
16 failing to translate Dr. Berman’s opinion about Plaintiff’s limitations
17 in the Workers’ Compensation context into the Social Security context.
18 See Booth v. Barnhart, 181 F.Supp.2d 1099, 1105-06 (C.D. Cal. 2002)
19 (“[T]he ALJ may not disregard a physician’s medical opinion simply . .
20 . because it is couched in the terminology used in such proceedings.”;
21 “The ALJ must ‘translate’ terms of art contained in such medical
22 opinions into the corresponding Social Security terminology in order to
23 accurately assess the implications of those opinions for the Social
24 Security disability determination.”); Vasquez-Pamplona v. Colvin, 2015
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The Court will not consider reasons for rejecting Dr. Berman’s

27 opinion (see Joint Stip. at 9-11) that were not given by the ALJ in the
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Decision. See Trevizo v. Berryhill, 862 F.3d 987, 997 (9th Cir. 2017);
Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001); SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947).
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1 WL 5796994, *4 (C.D. Cal. Sept. 30, 2015)(“A Social Security decision
2 must, however, reflect that the ALJ properly considered the pertinent
3 distinctions between the state and federal statutory schemes, and that
4 the ALJ accurately assessed the implications medical findings drawn from
5 a worker’s compensation opinion may have for purposes of a Social
6 Security disability determination.”)(citing Booth v. Barnhart, 181
7 F.Supp.2d at 1106); see also Lester v. Chater, 81 F.3d at 830 (“[T]he
8 purpose for which medical reports are obtained does not provide a
9 legitimate basis for rejecting them.”).
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11 B.

Remand Is Warranted

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The decision whether to remand for further proceedings or order an

14 immediate award of benefits is within the district court’s discretion.
15 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000).

Where no

16 useful purpose would be served by further administrative proceedings, or
17 where the record has been fully developed, it is appropriate to exercise
18 this discretion to direct an immediate award of benefits.

Id. at 1179

19 (“[T]he decision of whether to remand for further proceedings turns upon
20 the likely utility of such proceedings.”). However, where, as here, the
21 circumstances of the case suggest that further administrative review
22 could remedy the Commissioner’s errors, remand is appropriate.

McLeod

23 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, supra,
24 211 F.3d at 1179-81.
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Since the ALJ failed to properly assess the opinion of Dr. Berman,

27 remand is appropriate.

Because outstanding issues must be resolved

28 before a determination of disability can be made, and “when the record
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1 as a whole creates serious doubt as to whether the [Plaintiff] is, in
2 fact, disabled within the meaning of the Social Security Act,” further
3 administrative proceedings would serve a useful purpose and remedy
4 defects.

Burrell

v.

Colvin,

775

F.3d

1133,

1141

(9th

Cir.

5 2014)(citations omitted).7
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ORDER

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For the foregoing reasons, the decision of the Commissioner is

10 reversed, and the matter is remanded for further proceedings pursuant to
11 Sentence 4 of 42 U.S.C. § 405(g).
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LET JUDGMENT BE ENTERED ACCORDINGLY.

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15 DATED: August 31, 2017
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/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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any
Plaintiff
24 except to The Court has not reached with other issue raised by immediate
determine that reversal
a directive for the
would not be
25 payment of benefits record as a wholeappropriate at this time.
“[E]valuation of the
creates serious doubt that
is in
759
26 Plaintiff 2014). fact disabled.” Garrison v. Colvin,rule F.3d 995, 1021
(9th Cir.
Accordingly, the Court declines to
on Plaintiff’s
claim regarding the ALJ’s error in failing to properly determine that
27 Plaintiff could perform his past relevant work (see Joint Stip. at 11Because this matter is being remanded for further
28 15, 17-19).
consideration, this issue should also be considered on remand.
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