Jeffrey Alan Kinder v. Carolyn W. Colvin

Filing 21

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)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

JEFFREY ALAN KINDER,

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

NO. SA CV 16-1608-E

MEMORANDUM OPINION
AND ORDER OF REMAND

17
18

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

19

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

20

judgment are denied, and this matter is remanded for further

21

administrative action consistent with this Opinion.

22
23

PROCEEDINGS

24
25

On August 31, 2016, Plaintiff filed a Complaint seeking review of

26

the Commissioner’s denial of disability benefits.

On January 17,

27

2017, Plaintiff filed a motion for summary judgment.

28

2017, Defendant filed a “Memorandum in Support of Defendant’s Answer,”

On February 15,

1

which the Court construes as Defendant’s motion for summary judgment.

2

On March 17, 2017, Plaintiff filed a reply.

3

a Magistrate Judge on October 24, 2016.

4

motions for summary judgment under submission without oral argument.

5

See L.R. 7-15; “Order,” filed October 6, 2016.

The parties consented to

The Court has taken the

6
7

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

8
9

Plaintiff, a former sales supervisor and sales representative,

10

alleges disability since January 12, 2012, based on, inter alia, Lyme

11

disease, fibromyalgia, chronic fatigue syndrome, depression and

12

anxiety (Administrative Record (“A.R.”) 69, 175-89, 194-95, 207).

13

Several of Plaintiff’s treating physicians opined that Plaintiff’s

14

impairments have disabled him from performing any work (A.R. 412-14,

15

610, 642-43, 743-45, 839-42, 843-47, 848-51, 948-49, 952, 966-68).

16

particular, treating physicians Dr. Klinghardt and Dr. Schaffner of

17

the Sophia Health Institute opined that the symptomatology from

18

Plaintiff’s Lyme disease is of disabling severity (A.R. 412-14, 839-

19

42, 948-49).

In

20
21

The Administrative Law Judge (“ALJ”) found Plaintiff suffers from

22

severe Lyme disease, fibromyalgia, chronic fatigue syndrome,

23

depression and anxiety (A.R. 31).

24

severe impairments prevent Plaintiff from performing Plaintiff’s past

25

relevant work (A.R. 31, 38).

26

retains the residual functional capacity to perform other work (A.R.

27

32-39).

28

of several of Plaintiff’s treating physicians and relied instead on

The ALJ also found that these

According to the ALJ, however, Plaintiff

In reaching this conclusion, the ALJ discounted the opinions

2

1

the opinions of non-examining state agency physicians, to which the

2

ALJ expressly gave “significant weight” and “great weight” (A.R. 33-

3

37).

4
5

Plaintiff sought review from the Appeals Council, and submitted

6

additional evidence thereto (see A.R. 1-8).

The Appeals Council

7

“considered” some of this additional evidence, but denied review

8

(id.).

9

evidence, including a report from Dr. Kim Barrus, dated June 30, 2015

The Appeals Council “looked at” other of this additional

10

(A.R. 2).

The Appeals Council stated that Dr. Barrus’ report was

11

“about a later time” than the time of the ALJ’s March 9, 2015 decision

12

(id.).

13
14

In the present proceeding, on January 17, 2017, Plaintiff filed a

15

“Motion to Enter Report of Kim Barrus PhD into Administrative Record”

16

(“the Motion to Enter Report”).

17

order that the June 30, 2015 Report of Dr. Barrus (attached thereto)

18

be entered into the Administrative Record.

19

response to the Motion to Enter Report, despite a Court order that

20

Defendant do so.

The Motion to Enter Report seeks an

Defendant failed to file a

See Minute Order filed January 18, 2017.

21
22

The June 30, 2015 report of Dr. Barrus interprets and critiques a

23

2013 report by Dr. David Franklin and also interprets results from

24

neuropsychological testing that took place in 2013.

25

Thus, the substance of Dr. Barrus’ report concerns a time frame

26

before, not after, the ALJ’s March 9, 2015 decision.

27

Enter Report is granted.

28

required document, or the failure to file it within the deadline, may

See A.R. 581-87.

The Motion to

See L.R. 7-12 (“The failure to file any

3

1

be deemed consent to the granting or denial of the motion”).

The

2

Court’s granting of the Motion to Enter Report is academic, however,

3

because the Court’s ruling on the motions for summary judgment would

4

remain the same regardless of whether Dr. Barrus’ report is or is not

5

a part of the Administrative Record under review.1

6
7

STANDARD OF REVIEW

8
9

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

10

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

11

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

12

Administration used correct legal standards.

13

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

14

499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner

15

of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).

16

Substantial evidence is “such relevant evidence as a reasonable mind

17

might accept as adequate to support a conclusion.”

18

Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted);

19

see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

See Carmickle v.

Richardson v.

20
21

If the evidence can support either outcome, the court may

22

not substitute its judgment for that of the ALJ.

23

Commissioner’s decision cannot be affirmed simply by

24

isolating a specific quantum of supporting evidence.

25

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

26

weighing both evidence that supports and evidence that

But the

27
1

28

Plaintiff’s “Motion for Default, etc.,” filed March 23,
2017, is denied as moot.
4

1

detracts from the [administrative] conclusion.

2
3

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

4

quotations omitted).

5
6

Where, as here, the Appeals Council considered additional

7

evidence but denied review, the additional evidence becomes part of

8

the record for purposes of the Court’s analysis.

9

Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers

See Brewes v.

10

new evidence in deciding whether to review a decision of the ALJ, that

11

evidence becomes part of the administrative record, which the district

12

court must consider when reviewing the Commissioner’s final decision

13

for substantial evidence”; expressly adopting Ramirez v. Shalala, 8

14

F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d

15

1228, 1231 (2011) (courts may consider evidence presented for the

16

first time to the Appeals Council “to determine whether, in light of

17

the record as a whole, the ALJ’s decision was supported by substantial

18

evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953,

19

957 n.7 (9th Cir. 1993) (“the Appeals Council considered this

20

information and it became part of the record we are required to review

21

as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).

22
23

DISCUSSION

24
25

Plaintiff argues, inter alia, that the ALJ erred by relying on

26

the opinions of the state agency physicians.

27

argues that the record concerning the opinions of the state agency

28

physicians fails to “demonstrate any meaningful consideration of
5

Specifically, Plaintiff

1

evidence of Lyme disease” (Plaintiff’s Motion at 9).

Defendant does

2

not respond directly to this argument, other than to assert vaguely

3

that the state agency physicians’ opinions were “[b]ased on a review

4

of the overall record” (Defendant’s Motion at 6, 8).

5
6

The present record leaves in considerable doubt the extent to

7

which, if at all, the state agency physicians reviewed and considered

8

medical records regarding Plaintiff’s Lyme disease.

9

Diagnosis” sections of the state agency physicians’ reports fail to

The “Impairment

10

mention Lyme disease (A.R. 82, 98).

The sections of the state agency

11

physicians’ reports that list the “evidence received” do not list the

12

receipt of any evidence from the Sophia Health Institute (A.R. 76-79,

13

91-96).

14

indicate that evidence from the Sophia Health Institute was requested,

15

but apparently not received (A.R. 79-80, 96-97).

To the contrary, the state agency physicians’ reports

16
17

When a state agency physician has not reviewed a “substantial

18

portion of the relevant medical evidence,” it is error to give “great

19

weight” to the opinion of the state agency physician.

20

Herron v. Astrue, 407 Fed. App’x 139, 141 (9th Cir. 2010); see also 20

21

C.F.R. § 404.1527(c)(6) (in deciding the weight to give to a medical

22

opinion, the ALJ will consider the extent to which the person

23

rendering the opinion was familiar with the other information in the

24

record).

See, e.g.

25
26

Given the uncertainty in the present record regarding the extent

27

to which the state agency physicians reviewed and considered the

28

record evidence of Lyme disease, the ALJ erred by giving “significant
6

1

weight” and “great weight” to the opinions of the state agency

2

physicians.

3

the state agency physicians’ opinions to discount the treating

4

physicians’ opinions that Plaintiff suffers from disabling Lyme

5

disease symptomatology.

See id.

In particular, the ALJ should not have relied on

6
7

Buttressing this conclusion is the law’s requirement that the

8

opinion of a treating or examining physician generally receive more

9

weight than the opinion of a non-examining physician (such as the

10

state agency physicians in the present case).

See Andrews v. Shalala,

11

53 F.3d 1035, 1040-41 (9th Cir. 1995).

12

physician cannot by itself constitute substantial evidence that

13

justifies the rejection of the opinion of either an examining

14

physician or a treating physician.”

15

831 (9th Cir. 1995) (emphasis in original); see also Orn v. Astrue,

16

495 F.3d 625, 632 (9th Cir. 2007) (“When [a nontreating] physician

17

relies on the same clinical findings as a treating physician, but

18

differs only in his or her conclusions, the conclusions of the

19

[nontreating] physician are not ‘substantial evidence.’”); Pitzer v.

20

Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) (“The nonexamining

21

physicians’ conclusion, with nothing more, does not constitute

22

substantial evidence, particularly in view of the conflicting

23

observations, opinions, and conclusions of an examining physician”).

“The opinion of a nonexamining

Lester v. Chater, 81 F.3d 821,

24
25

Moreover, a treating physician’s conclusions “must be given

26

substantial weight.”

Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.

27

1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the

28

ALJ must give sufficient weight to the subjective aspects of a
7

1

doctor’s opinion. . . .

This is especially true when the opinion is

2

that of a treating physician”) (citation omitted); see also Orn v.

3

Astrue, 495 F.3d at 631-33 (discussing deference owed to treating

4

physicians’ opinions).

5

are contradicted,2 “if the ALJ wishes to disregard the opinion[s] of

6

the treating physician he . . . must make findings setting forth

7

specific, legitimate reasons for doing so that are based on

8

substantial evidence in the record.”

9

647 (9th Cir. 1987) (citation, quotations and brackets omitted); see

Even where the treating physician’s opinions

Winans v. Bowen, 853 F.2d 643,

10

Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ may disregard the

11

treating physician’s opinion, but only by setting forth specific,

12

legitimate reasons for doing so, and this decision must itself be

13

based on substantial evidence”) (citation and quotations omitted).3

14
2

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Rejection of an uncontradicted opinion of a treating
physician requires a statement of “clear and convincing” reasons.
Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v.
Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984).
3

The Court need not and does not determine whether the
ALJ stated legally sufficient reasons to discount the opinions of
treating physicians Beheshti, Bhakta, Klinghardt, Leeherley and
Schaffner. However, on remand, the ALJ should define more
clearly and more specifically the reasons why the ALJ discounts
the opinions of each of these treating physicians (if discounting
occurs again on remand); see Kinzer v. Colvin, 567 Fed. App’x
529, 530 (9th Cir. 2014) (ALJ’s statements that treating
physicians’ opinions “contrasted sharply with the other evidence
of record” and were “not well supported by the . . . other
objective findings in the case record” held insufficient);
McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (“broad
and vague” reasons for rejecting treating physician’s opinions do
not suffice); Embrey v. Bowen, 849 F.2d at 421 (“To say that the
medical opinions are not supported by sufficient objective
findings or are contrary to the preponderant conclusions mandated
by the objective findings does not achieve the level of
specificity our prior cases have required. . . .”); compare
Wilson v. Colvin, 583 Fed. App’x 649, 651 (9th Cir. 2014)
(continued...)
8

1

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

2

have been harmless.

See Molina v. Astrue, 674 F.3d 1104, 1115 (9th

3

Cir. 2012) (an error “is harmless where it is inconsequential to the

4

ultimate non-disability determination”) (citations and quotations

5

omitted); McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error

6

not harmless where “the reviewing court can determine from the

7

‘circumstances of the case’ that further administrative review is

8

needed to determine whether there was prejudice from the error”).

9
10

Remand is appropriate because the circumstances of this case

11

suggest that further administrative review could remedy the ALJ’s

12

errors.

13

537 U.S. 12, 16 (2002) (upon reversal of an administrative

14

determination, the proper course is remand for additional agency

15

investigation or explanation, except in rare circumstances); Dominguez

16

v. Colvin, 808 F.3d 403, 407 (9th Cir. 2016) (“Unless the district

17

court concludes that further administrative proceedings would serve no

18

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

19

benefits”); Treichler v. Commissioner, 775 F.3d 1090, 1101 n.5 (9th

20

Cir. 2014) (remand for further administrative proceedings is the

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

21
22
3

23
24
25
26
27
28

(...continued)
(upholding rejection of treating physician’s opinion where the
ALJ determined that the opinion was not corroborated by any other
medical opinion, was inconsistent with the rest of the record,
and relied heavily on the claimant’s own subjective statements
which the ALJ found incredible). To the extent the opinions of
other medical sources contradicted the opinions of the treating
physicians, such contradiction triggers rather than satisfies the
requirement of stating “specific, legitimate reasons.” See,
e.g., Valentine v. Commissioner, 574 F.3d 685, 692 (9th Cir.
2007); Orn v. Astrue, 495 F.3d at 631-33.
9

1

proper remedy “in all but the rarest cases”); Garrison v. Colvin, 759

2

F.3d 995, 1020 (9th Cir. 2014) (court will credit-as-true medical

3

opinion evidence only where, inter alia, “the record has been fully

4

developed and further administrative proceedings would serve no useful

5

purpose”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert.

6

denied, 531 U.S. 1038 (2000) (remand for further proceedings rather

7

than for the immediate payment of benefits is appropriate where there

8

are “sufficient unanswered questions in the record”).

9

significant unanswered questions in the present record.

There remain
Cf. Marsh v.

10

Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (remanding for further

11

proceedings to allow the ALJ to “comment on” the treating physician’s

12

opinion).

13

find Plaintiff disabled for the entire claimed period of disability

14

even if the treating physicians’ opinions were fully credited.

15

Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).

16

///

17

///

18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///

Moreover, it is not clear that the ALJ would be required to

10

See

1

CONCLUSION

2
3

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

4

motions for summary judgment are denied and this matter is remanded

5

for further administrative action consistent with this Opinion.

6
7

LET JUDGMENT BE ENTERED ACCORDINGLY.

8
9

DATED: March 23, 2017.

10
11

/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4

27
28

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.
11