Ralph William Leonard v. Carolyn W. Colvin

Filing 30

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. (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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RALPH WILLIAM LEONARD,
Plaintiff,

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v.

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Case No. SACV 16-1330 JC
MEMORANDUM OPINION AND
ORDER OF REMAND

NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security,
Defendant.

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I.

SUMMARY
On July 15, 2016, plaintiff Ralph William Leonard 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. The Court has taken both motions under submission without oral
argument. See Fed. R. Civ. P. 78; L.R. 7-15; August 8, 2016 Case Management
Order ¶ 5.
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Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is
hereby substituted as the defendant in this action.

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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

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DECISION

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On August 26, 2013, plaintiff filed an application for Disability Insurance

7 Benefits alleging disability beginning on July 19, 2011, due to cervical disc
8 herniation, shoulder tendinitis, major depressive disorder, panic attack, anxiety,
9 poor sleep, and poor concentration. (Administrative Record (“AR”) 21, 186, 217).
10 The Administrative Law Judge (“ALJ”) examined the medical record and heard
11 testimony from plaintiff (who was represented by counsel) and a vocational expert
12 on December 10, 2014. (AR 47-80).
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On January 26, 2015, the ALJ determined that plaintiff was not disabled

14 through December 3, 2012 – the date last insured. (AR 21-31). Specifically, the
15 ALJ found: (1) plaintiff suffered from the following severe impairments: cervical
16 degenerative disc disease with radiculopathy, left shoulder tendinitis, sprain of left
17 hand, and major depressive disorder with anxiety (AR 23); (2) plaintiff’s
18 impairments, considered singly or in combination, did not meet or medically equal
19 a listed impairment (AR 23-24); (3) plaintiff retained the residual functional
20 capacity to essentially perform light work (20 C.F.R. § 404.1567(b)) with
21 additional limitations2 (AR 25); (4) plaintiff was unable to perform any past
22 relevant work (AR 29); (5) there are jobs that exist in significant numbers in the
23 national economy that plaintiff could perform (AR 29-30); and (6) plaintiff’s
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The ALJ determined that plaintiff could (i) occasionally lift and/or carry 20 pounds;
(ii) frequently lift and/or carry 10 pounds; (iii) stand and/or walk for six hours in an eight-hour
workday; (iv) sit for six hours in an eight-hour workday; (v) frequently climb, balance, stoop,
kneel, crawl, and crouch; (vi) occasionally use ladders, ropes, and scaffolds; (vii) frequently
reach overhead and handle bilaterally; and (viii) have occasional contact with coworkers and
supervisors, but no contact with the public. (AR 25).

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1 statements regarding the intensity, persistence, and limiting effects of subjective
2 symptoms were not entirely credible (AR 28).
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On June 9, 2016, the Appeals Council denied plaintiff’s application for

4 review. (AR 1).
5 III.

APPLICABLE LEGAL STANDARDS

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A.

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To qualify for disability benefits, a claimant must show that he or she is

Administrative Evaluation of Disability Claims

8 unable “to engage in any substantial gainful activity by reason of any medically
9 determinable physical or mental impairment which can be expected to result in
10 death or which has lasted or can be expected to last for a continuous period of not
11 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)
12 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). To be
13 considered disabled, a claimant must have an impairment of such severity that he
14 or she is incapable of performing work the claimant previously performed (“past
15 relevant work”) as well as any other “work which exists in the national economy.”
16 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)).
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To assess whether a claimant is disabled, an ALJ is required to use the five-

18 step sequential evaluation process set forth in Social Security regulations. See
19 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th
20 Cir. 2006) (citations omitted) (describing five-step sequential evaluation process)
21 (citing 20 C.F.R. §§ 404.1520). The claimant has the burden of proof at steps one
22 through four – i.e., determination of whether the claimant was engaging in
23 substantial gainful activity (step 1), has a sufficiently severe impairment (step 2),
24 has an impairment or combination of impairments that meets or equals a listing in
25 20 C.F.R. Part 404, Subpart P, Appendix 1 (step 3), and retains the residual
26 functional capacity to perform past relevant work (step 4). Burch v. Barnhart, 400
27 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The Commissioner has the
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1 burden of proof at step five – i.e., establishing that claimant could perform other
2 work in the national economy. Id.
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B.

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A federal court may set aside a denial of benefits only when the

Federal Court Review of Social Security Disability Decisions

5 Commissioner’s “final decision” was “based on legal error or not supported by
6 substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871
7 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The
8 standard of review in disability cases is “highly deferential.” Rounds v.
9 Commissioner of Social Security Administration, 807 F.3d 996, 1002 (9th Cir.
10 2015) (citation and quotation marks omitted). Thus, an ALJ’s decision must be
11 upheld if the evidence could reasonably support either affirming or reversing the
12 decision. Trevizo, 871 F.3d at 674-75 (citations omitted). Even when an ALJ’s
13 decision contains error, it must be affirmed if the error was harmless. Treichler v.
14 Commissioner of Social Security Administration, 775 F.3d 1090, 1099 (9th Cir.
15 2014) (ALJ error harmless if (1) inconsequential to the ultimate nondisability
16 determination; or (2) ALJ’s path may reasonably be discerned despite the error)
17 (citation and quotation marks omitted).
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Substantial evidence is “such relevant evidence as a reasonable mind might

19 accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (citation
20 and quotation marks omitted). It is “more than a mere scintilla, but less than a
21 preponderance.” Id. When determining whether substantial evidence supports an
22 ALJ’s finding, a court “must consider the entire record as a whole, weighing both
23 the evidence that supports and the evidence that detracts from the Commissioner’s
24 conclusion[.]” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation
25 and quotation marks omitted).
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While an ALJ’s decision need not be drafted with “ideal clarity,” at a

27 minimum it must describe the ALJ’s reasoning with sufficient specificity and
28 clarity to “allow[] for meaningful review.” Brown-Hunter v. Colvin, 806 F.3d
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1 487, 492 (9th Cir. 2015) (citations and internal quotation marks omitted); see
2 generally 42 U.S.C. § 405(b)(1) (“ALJ’s unfavorable decision must, among other
3 things, “set[] forth a discussion of the evidence” and state “the reason or reasons
4 upon which it is based”); Securities and Exchange Commission v. Chenery Corp.,
5 332 U.S. 194, 196-97 (1947) (administrative agency’s determination must be set
6 forth with clarity and specificity). Federal courts review only the reasoning the
7 ALJ provided, and may not affirm the ALJ’s decision “on a ground upon which
8 [the ALJ] did not rely.” Trevizo, 871 F.3d at 675 (citations omitted).
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C.

Evaluation of Medical Opinion Evidence

In Social Security cases, the amount of weight given to medical opinions

11 generally varies depending on the type of medical professional who provided the
12 opinions, namely “treating physicians,” “examining physicians,” and
13 “nonexamining physicians” (e.g., “State agency medical or psychological
14 consultant[s]”). 20 C.F.R. §§ 404.1527(c)(1)-(2) & (e), 404.1502, 404.1513(a);
15 Garrison, 759 F.3d at 1012 (citation and quotation marks omitted). A treating
16 physician’s opinion is generally given the most weight, and may be “controlling”
17 if it is “well-supported by medically acceptable clinical and laboratory diagnostic
18 techniques and is not inconsistent with the other substantial evidence in [the
19 claimant’s] case record[.]” 20 C.F.R. § 404.1527(c)(2); Trevizo, 871 F.3d at 675
20 (citation omitted). In turn, an examining, but non-treating physician’s opinion is
21 entitled to less weight than a treating physician’s, but more weight than a
22 nonexamining physician’s opinion. Garrison, 759 F.3d at 1012 (citation omitted).
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An ALJ is required to consider multiple factors when evaluating medical

24 opinions from examining and nonexamining sources, as well as treating source
25 opinions that have not been deemed “controlling.” Trevizo, 871 F.3d at 675
26 (citation omitted). Appropriate factors include (i) “[l]ength of the treatment
27 relationship and the frequency of examination”; (ii) “[n]ature and extent of the
28 treatment relationship”; (iii) “supportability” (i.e., the amount of “relevant
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1 evidence” the medical source presents, and the quality/extent of the “explanation a
2 source provides for an opinion”); (iv) “[c]onsistency . . . with the record as a
3 whole”; (v) “[s]pecialization” (i.e., “[whether an] opinion [provided by] a
4 specialist about medical issues related to his or her area of specialty”); and
5 (vi) “[o]ther factors . . . which tend to support or contradict the opinion” (i.e., the
6 extent to which a physician “is familiar with the other information in [a
7 claimant’s] case record,” or the physician understands Social Security “disability
8 programs and their evidentiary requirements”). 20 C.F.R. § 404.1527(c)(2)-(6);
9 Trevizo, 871 F.3d at 675.
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An ALJ may reject the uncontroverted opinion of either a treating or

11 examining physician only by providing “clear and convincing reasons that are
12 supported by substantial evidence.” Trevizo, 871 F.3d at 675 (citation omitted).
13 Where a treating or examining physician’s opinion is contradicted by another
14 doctor’s opinion, an ALJ may reject such opinion only “by providing specific and
15 legitimate reasons that are supported by substantial evidence.” Id.
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An ALJ may provide sufficient reasons for rejecting a medical opinion by

17 “setting out a detailed and thorough summary of the facts and conflicting clinical
18 evidence, stating his [or her] interpretation thereof, and making findings.” Id.
19 (citation omitted). An ALJ’s findings must provide more than mere “conclusions”
20 or “broad and vague” reasons for rejecting a particular treating or examining
21 physician’s opinion. Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988);
22 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (citation omitted).
23 “[The ALJ] must set forth his [or her] own interpretations and explain why they,
24 rather than the [physician’s], are correct.” Embrey, 849 F.2d at 421-22.
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DISCUSSION

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Here, a remand is warranted for at least the reasons discussed below.

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First, the discussion of the medical opinion evidence in the ALJ’s decision

28 is not sufficiently specific to permit meaningful review by this Court. See
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1 generally Embrey, 849 F.2d at 422 (“Particularly in a case where the medical
2 opinions of the physicians differ so markedly from the ALJ’s, it is incumbent on
3 the ALJ to provide detailed, reasoned, and legitimate rationales for disregarding []
4 physicians’ findings.”) (citation omitted). In a single, sweeping sentence the ALJ
5 rejected four different medical opinions provided by separate doctors: “The
6 undersigned accords little weight to these opinions because they are not consistent
7 with the record as a whole, e.g., generally unremarkable physical examinations
8 and mild MRI/x-ray findings as discussed above.” (AR 28). Such conclusory and
9 boilerplate language without citation to any specific evidence in the record does
10 not satisfy the ALJ’s obligation to provide clear and convincing or specific and
11 legitimate reasons for giving less weight to any specific medical opinion the ALJ
12 referenced. See, e.g., Trevizo, 871 F.3d at 676-77 (ALJ’s conclusory findings that
13 medical opinion was contradicted by physician’s treatment notes and other
14 medical evidence not sufficiently specific reasons for rejecting doctor’s opinions
15 where “the ALJ pointed to nothing in [the doctor’s] treatment notes or elsewhere
16 in the clinical record that contradicted the treating physician’s opinion”) (citation
17 omitted); Embrey, 849 F.2d at 421 (“To say that medical opinions are not
18 supported by sufficient objective findings or are contrary to the preponderant
19 conclusions mandated by the objective findings does not achieve the level of
20 specificity our prior cases have required, even when the objective factors are listed
21 seriatim.”); Kinzer v. Colvin, 567 Fed. Appx. 529, 530 (9th Cir. 2014) (ALJ’s
22 statements that treating physicians’ opinions “contrasted sharply with the other
23 evidence of record” and were “not well supported by the . . . other objective
24 findings in the case record” held insufficient) (citing id.).
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Second, the ALJ did not find any treating physician’s opinion “controlling,”

26 and appears not to have applied the appropriate factors for weighing any of the
27 specific medical opinions. (AR 28). “This failure alone constitutes reversible
28 legal error.” Trevizo, 871 F.3d at 676.
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Third, most of the medical opinion evidence referenced in the ALJ’s

2 decision appears to have been generated in a state workers’ compensation case.
3 (See AR 28) (citing Exhibit 1F at 9 [AR 286 - Dr. Kee Wong Report of Initial
4 Orthopedic Consultation addressed to State Compensation Insurance Fund];
5 Exhibit 1F at 40, 45 [AR 317, 322 - Work Status Reports of Drs. Jackson S.
6 Alparce and Dawn V. Morales]; Exhibit 2F at 44, 53 [AR 375, 384 - Work Status
7 Forms from Dr. A. Michael Moheimani]; Exhibit 11F at 236-37 [AR 879-80 8 Work Status Form & Primary Treating Physician Progress Report for State of
9 California Division of Workers Compensation from Dr. Moheimani]; Exhibit 11F
10 at 119 [AR 762 - Qualified Medical Evaluation from Dr. Zenia E. Cortes for State
11 Compensation Insurance Fund]). The ALJ’s decision here does not reflect that the
12 ALJ properly considered the pertinent distinctions between the state and federal
13 statutory schemes, or that the ALJ accurately assessed the implications medical
14 findings drawn from a workers’ compensation opinion may have for purposes of
15 the Social Security disability determination in issue. See, e.g., Booth v. Barnhart,
16 181 F. Supp. 2d 1099, 1106 (C.D. Cal. 2002) (ALJ’s decision must reflect “that
17 the ALJ recognized the differences between the relevant state workers’
18 compensation terminology, on the one hand, and the relevant Social Security
19 disability terminology, on the other hand, and took those differences into account
20 in evaluating the medical evidence.”); Desrosiers v. Secretary of Health and
21 Human Services, 846 F.2d 573, 576 (9th Cir. 1988) (finding ALJ’s interpretation
22 of treating physician’s opinion erroneous where record clear that ALJ
23 affirmatively failed to consider distinction between categories of work under
24 social security disability scheme versus workers’ compensation scheme).
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Fourth, the ALJ’s decision suggests that the ALJ effectively rejected every

26 medical opinion that addressed plaintiff’s functional abilities, and instead
27 impermissibly assessed plaintiff’s residual functional capacity based solely on the
28 ALJ’s own lay interpretation of the medical records as a whole. (See AR 28
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1 [“accord[ing] little weight” to opinions of treating/examining Drs. Alparce,
2 Morales, Moheimani, and Cortes, and “less weight” to treating orthopedist Dr.
3 Wong]; AR 29 [“accord[ing] little weight” to opinions of state agency medical
4 consultants Drs. Ruiz, Resnik, and Walls]; AR 29 [“In sum, the above residual
5 functional capacity assessment is supported by the medical evidence of record and
6 the [plaintiff’s] ability to perform extensive activities of daily living.”]).
7 Consequently, the ALJ’s findings regarding plaintiff’s residual functional capacity
8 are not supported by substantial evidence. See Brawders v. Astrue, 793 F. Supp.
9 2d 485, 493 (D. Mass. 2011) (citing Perez v. Secretary of Health and Human
10 Services, 958 F.2d 445, 446 (1st Cir. 1991) (per curiam) (“[W]here an ALJ reaches
11 conclusions about [a] claimant’s physical exertional capacity without any
12 assessment of residual functional capacity by a physician, the ALJ’s conclusions
13 are not supported by substantial evidence and it is necessary to remand for the
14 taking of further functional evidence.”)); see also Penny v. Sullivan, 2 F.3d 953,
15 958 (9th Cir. 1993) (“Without a personal medical evaluation it is almost
16 impossible to assess the residual functional capacity of any individual.”); Tagger
17 v. Astrue, 536 F. Supp. 2d 1170, 1181 (C.D. Cal. 2008) (“ALJ’s determination or
18 finding must be supported by medical evidence, particularly the opinion of a
19 treating or an examining physician.”) (citations and internal quotation marks
20 omitted); Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006) (same,
21 also noting “[ALJ] must not succumb to the temptation to play doctor and make
22 . . . independent medical findings.”) (quoting Rohan v. Chater, 98 F.3d 966, 970
23 (7th Cir. 1996)) (quotation marks omitted); Winters v. Barnhart, 2003 WL
24 22384784, at *6 (N.D. Cal. Oct. 15, 2003) (“The ALJ is not allowed to use his
25 own medical judgment in lieu of that of a medical expert.”) (citations omitted).
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Finally, given the lack of specificity in the ALJ’s discussion of the medical

27 opinion evidence, the Court cannot confidently conclude that the ALJ’s above28 referenced errors were harmless. Accordingly a remand for additional
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1 investigation and/or explanation with regard to the medical opinion evidence is
2 appropriate.
3 V.

CONCLUSION3

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For the foregoing reasons, the decision of the Commissioner of Social

5 Security is reversed in part, and this matter is remanded for further administrative
6 action consistent with this Opinion.4
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LET JUDGMENT BE ENTERED ACCORDINGLY.

8 DATED: October 30, 2017
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_____________/s/____________________
Honorable Jacqueline Chooljian
UNITED STATES MAGISTRATE JUDGE

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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.
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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).

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