Raymond v. Commissioner of Social Security

Filing 21

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 11/5/14 Recommending that Plaintiff's MOTION for SUMMAARY JUDGMENT 14 be granted; Defendant's Cross MOTION for SUMMARY JUDGMENT 17 be denied; and This matter be remanded for further proceedings re 1 Social Security Complaint. Thse Findings and Recommendations are submitted to U.S. District Judge John A. Mendez. Objections to these F&R due within 14 days. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAZZ MARRIE RAYMOND,

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Plaintiff,

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No. 2:13-CV-2033-JAM-CMK

vs.

FINDINGS AND RECOMMENDATIONS

COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.
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Plaintiff, who is proceeding with retained counsel, brings this action under

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42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security.

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Pending before the court are plaintiff’s motion for summary judgment (Doc. 14) and defendant’s

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cross-motion for summary judgment (Doc. 17).

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I. PROCEDURAL HISTORY
Plaintiff applied for social security benefits on June 3, 2011. In the application,

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plaintiff claims that disability began on December 14, 1992. Plaintiff’s claim was initially

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denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which

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was held on February 6, 2013, before Administrative Law Judge (“ALJ”) William C. Thompson,

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Jr. In a March 15, 2013, decision, the ALJ concluded that plaintiff is not disabled based on the

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following relevant findings:

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1.

The claimant has the following severe impairment(s): borderline
intellectual functioning;

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The claimant does not have an impairment or combination of impairments
that meets or medically equals an impairment listed in the regulations;

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The claimant has the following residual functional capacity: full range of
work at all exertional levels but with the following non-exertional
limitations: she can perform simple, routine, and repetitive tasks and have
occasional interaction with supervisors, co-workers, and the public;

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Considering the claimant’s age, education, work experience, residual
functional capacity, and vocational expert testimony, there are jobs that
exist in significant numbers in the national economy that the claimant can
perform.

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After the Appeals Council declined review on August 9, 2013, this appeal followed.

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II. STANDARD OF REVIEW

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The court reviews the Commissioner’s final decision to determine whether it is:

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(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

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whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

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more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521

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(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to

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support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,

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including both the evidence that supports and detracts from the Commissioner’s conclusion, must

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be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones
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v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s

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decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

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findings, or if there is conflicting evidence supporting a particular finding, the finding of the

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Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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Therefore, where the evidence is susceptible to more than one rational interpretation, one of

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which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

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standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

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Cir. 1988).

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III. DISCUSSION

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In her motion for summary judgment, plaintiff argues: (1) the ALJ failed to

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address the opinions of the agency non-examining medical sources; (2) the ALJ failed to

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articulate sufficient reasons for rejecting the opinions of examining sources Drs. Wakefield and

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Defreitas; and (3) the ALJ erred in concluding that plaintiff’s impairments do not meet or

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medically equal Listing 12.05C.1

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A.

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Evaluation of the Medical Opinions
The weight given to medical opinions depends in part on whether they are

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proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d

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821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating

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professional, who has a greater opportunity to know and observe the patient as an individual,

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than the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285

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While plaintiff also states in her brief that she “strongly objects” to any inference
defendant may suggest that she concedes to the ALJ’s adverse credibility finding, she does not
present any specific arguments as to credibility. The ALJ’s adverse credibility finding, therefore,
is not before the court.
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(9th Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given

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to the opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4

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(9th Cir. 1990).

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In addition to considering its source, to evaluate whether the Commissioner

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properly rejected a medical opinion the court considers whether: (1) contradictory opinions are

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in the record; and (2) clinical findings support the opinions. The Commissioner may reject an

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uncontradicted opinion of a treating or examining medical professional only for “clear and

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convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831.

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While a treating professional’s opinion generally is accorded superior weight, if it is contradicted

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by an examining professional’s opinion which is supported by different independent clinical

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findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035,

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1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be

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rejected only for “specific and legitimate” reasons supported by substantial evidence. See Lester,

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81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of

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the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a

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finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and

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legitimate reasons, the Commissioner must defer to the opinion of a treating or examining

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professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,

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without other evidence, is insufficient to reject the opinion of a treating or examining

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professional. See id. at 831. In any event, the Commissioner need not give weight to any

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conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111,

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1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion);

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see also Magallanes, 881 F.2d at 751.

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Non-Examining Sources

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Plaintiff argues that the ALJ failed to give any consideration to the opinions of

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two agency non-examining medical sources. According to plaintiff: “The ALJ never analyzed or

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discussed why he was not crediting the state agency opinions that Ms. Raymond’s back condition

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limited her to medium work.” Plaintiff cites first to an August 10, 2011, case analysis by agency

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reviewing doctor Sadda V. Reddy, M.D. Dr. Reddy concluded: “In summary, CE MSO of a

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medium RFC with frequent postural limitations is appropriate considering chronic low back pain

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with history of radicular symptoms.” Next, plaintiff cites a June 15, 2012, case review by Roger

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Fast, M.D., who concluded: “I agree with and affirm the medium RFC.” Defendant argues:

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“Here, to the extent that the ALJ failed to discuss the opinions of Dr. Reddy and Dr. Fast, this

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error was harmless.”

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The Ninth Circuit has applied harmless error analysis in social security cases in a

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number of contexts. For example, in Stout v. Commissioner of Social Security, 454 F.3d 1050

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(9th Cir. 2006), the court stated that the ALJ’s failure to consider uncontradicted lay witness

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testimony could only be considered harmless “. . . if no reasonable ALJ, when fully crediting the

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testimony, could have reached a different disability determination.” Id. at 1056; see also Robbins

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v. Social Security Administration, 466 F.3d 880, 885 (9th Cir. 2006) (citing Stout, 454 F.3d at

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1056). Similarly, in Batson v. Commissioner of Social Security, 359 F.3d 1190 (9th Cir. 2004),

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the court applied harmless error analysis to the ALJ’s failure to properly credit the claimant’s

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testimony. Specifically, the court held:

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However, in light of all the other reasons given by the ALJ for
Batson’s lack of credibility and his residual functional capacity, and in
light of the objective medical evidence on which the ALJ relied there was
substantial evidence supporting the ALJ’s decision. Any error the ALJ
may have committed in assuming that Batson was sitting while watching
television, to the extent that this bore on an assessment of ability to work,
was in our view harmless and does not negate the validity of the ALJ’s
ultimate conclusion that Batson’s testimony was not credible.

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Id. at 1197 (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990)).
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In Curry, the Ninth Circuit applied the harmless error rule to the ALJ’s error with respect to the

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claimant’s age and education. The Ninth Circuit also considered harmless error in the context of

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the ALJ’s failure to provide legally sufficient reasons supported by the record for rejecting a

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medical opinion. See Widmark v. Barnhart, 454 F.3d 1063, 1069 n.4 (9th Cir. 2006).

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The harmless error standard was applied in Carmickle v. Commissioner, 533 F.3d

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1155 (9th Cir. 2008), to the ALJ’s analysis of a claimant’s credibility. Citing Batson, the court

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stated: “Because we conclude that . . . the ALJ’s reasons supporting his adverse credibility

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finding are invalid, we must determine whether the ALJ’s reliance on such reasons was harmless

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error.” See id. at 1162. The court articulated the difference between harmless error standards set

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forth in Stout and Batson as follows:
. . . [T]he relevant inquiry [under the Batson standard] is not
whether the ALJ would have made a different decision absent any error. . .
it is whether the ALJ’s decision remains legally valid, despite such error.
In Batson, we concluded that the ALJ erred in relying on one of several
reasons in support of an adverse credibility determination, but that such
error did not affect the ALJ’s decision, and therefore was harmless,
because the ALJ’s remaining reasons and ultimate credibility
determination were adequately supported by substantial evidence in the
record. We never considered what the ALJ would do if directed to
reassess credibility on remand – we focused on whether the error impacted
the validity of the ALJ’s decision. Likewise, in Stout, after surveying our
precedent applying harmless error on social security cases, we concluded
that “in each case, the ALJ’s error . . . was inconsequential to the ultimate
nondisability determination.”
Our specific holding in Stout does require the court to consider
whether the ALJ would have made a different decision, but significantly,
in that case the ALJ failed to provide any reasons for rejecting the
evidence at issue. There was simply nothing in the record for the court to
review to determine whether the ALJ’s decision was adequately supported.

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Carmickle, 533 F.3d at 1162-63 (emphasis in original; citations omitted).
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Thus, where the ALJ’s errs in not providing any reasons supporting a particular determination

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(i.e., by failing to consider lay witness testimony), the Stout standard applies and the error is

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harmless if no reasonable ALJ could have reached a different conclusion had the error not

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occurred. Otherwise, where the ALJ provides analysis but some part of that analysis is flawed
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(i.e., some but not all of the reasons given for rejecting a claimant’s credibility are either legally

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insufficient or unsupported by the record), the Batson standard applies and any error is harmless

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if it is inconsequential to the ultimate decision because the ALJ’s disability determination

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nonetheless remains valid.

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At the outset, the court agrees with plaintiff that the ALJ erred in concluding that

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plaintiff could perform work at all exertional levels by failing to discuss, or even mention, the

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opinions of Drs. Reddy and Fast which limit plaintiff to medium work due to back problems.

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Considering next defendant’s argument that the error is harmless, the court applies the Stout

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standard because, in essence, the ALJ provided no reasons for rejecting these doctors’ limitation

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to medium work. Under this standard, the question is whether any reasonable ALJ, having

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considered the opinions of Drs. Reddy and Fast, could have limited plaintiff to medium work. If

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so, then the error cannot be considered harmless and must be corrected by the agency.

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Defendant argues that the ALJ need not “mention every doctor by name” because

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it is only necessary for the ALJ to consider probative evidence. The court rejects defendant’s

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suggestion that the opinions of Drs. Reddy and Fast, who examined the record at the request of

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the agency and concluded that plaintiff’s back problems limit her to medium work, are not

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probative on the issue of plaintiff’s residual functional capacity. To the contrary, their opinions

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directly address the question of plaintiff’s functional capacity.

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Next, defendant argues that the error is harmless because no ALJ considering the
opinions of Drs. Reddy and Fast would have given them any weight. According to defendant:
Here, the opinions of Dr. Reddy and Dr. Fast are internally
inconsistent, i.e., they are not even supported by their own findings.
Plaintiff’s argument is that Dr. Reddy’s opinion “limiting” Plaintiff to
medium work due to a back impairment, however, the physical findings
were benign; straight-leg raising was negative, the MRI was negative, gait
was normal, flexion was normal, motor and sensory were normal, Plaintiff
was engaging in normal activities of daily living (Tr. 32). The only thing
supporting Dr. Reddy’s opinion were findings of mild back spasm and
tenderness (Tr. 32). The Commissioner submits that these findings did not
support imposition of any limitations.

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While defendant’s summary of Dr. Reddy’s August 10, 2011, case analysis is

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accurate, defendant fails to note that Dr. Reddy also cited “history of radicular symptoms” in

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support of the doctor’s conclusion that plaintiff is limited to medium work. Additionally,

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defendant’s argument only addresses Dr. Reddy’s opinion. Defendant fails to offer any analysis

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as to Dr. Fast’s June 15, 2012, case review, which is based on a review of the entire file. Given

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the arguments offered by defendant, the court declines to conclude that the opinions of Drs.

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Reddy and Fast could not support imposition of a medium work restriction.

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In any event, the analysis defendant offers and suggests this court adopt is exactly
the kind of analysis that is reserved for the agency in the first instance and that would have

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happened in this case had the error plaintiff complains of not occurred. The court finds that this

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matter should be remanded to the agency to address the opinions of Drs. Reddy and Fast limiting

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plaintiff to medium work.

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Plaintiff argues that the ALJ failed to articulate sufficient reasons for rejecting the

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Examining Sources

opinions of examining sources, Drs. Defreitas and Wakefield.

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As to Dr. Defreitas, the ALJ stated:

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On July 14, 2011, Donna Defreitas, M.D., performed a consultative
internal medicine evaluation of the claimant at the behest of the State
agency. The latter complained of back pain for 2 or 3 months, but
admitted she could perform personal care, do housework, vacuum, mop,
wash dishes, interact with friends, and dance (Ex. 12F1). On examination,
she had normal gait and range of motion in the back, negative straight leg
raising, tenderness and mild muscle spasm in the lumbar spine, signs of
scoliosis in the thoracic spine (Ex. 12F3), and full muscle strength and
tone. Dr. Defreitas diagnosed mild to moderate scoliosis and diminished
reflexes in the right pattelar, suggestive of nerve compromise. Dr.
Defreitas opined the claimant could perform medium work except she
could frequently crouch and stoop (Ex. 12F4). I give Dr. Defreitas’
opinion reduced weight. X-rays and an MRI of the back showed no
abnormalities, and the claimant reported activities that are not consistent
with the alleged severity of her pain. Further, the claimant did not
consistently complain of pain and did not complete her physical therapy,
suggesting her pain was not as great as she contends.

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As to Dr. Wakefield, the ALJ stated:

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On July 21, 2011, James Wakefield, Ph.D., performed a consultative
psychological evaluation of the claimant at the behest of the State agency.
On examination, the claimant endorsed visual hallucinations of her
grandmother, displayed deficient intelligence, judgment, and
concentration, and exhibited borderline and/or inconsistent memory,
ability to perform calculations, and fund of information. However, she did
not appear to respond to internal stimuli, had normal appearance and
thought content, was cooperative and communicative, showed cheerful
affect, spoke clearly with minimally adequate verbal skills, was oriented,
and endorsed “OK” mood (Ex. 13F2). She tested with a full scale IQ of
68, in the deficient range, deficient delayed memory (Ex. 13F3), and poor
performance on the Trails test. However, she tested with much better
memory and perceptual motor skills on the final test. Dr. Wakefield
diagnosed mood disorder NOS, borderline intellectual functioning versus
mild mental retardation, and a Global Assessment of Functioning score of
65, indicating mild symptoms or difficulties. He opined that the claimant
could not handle finances, could perform simple, repetitive tasks (Ex.
13F4), had limited and/or deficient ability to reason, concentrate, and
make decisions in her best interest, and had immature social functioning.
Because Dr. Wakefield does not specify what functional limitations result
from her limited or deficient abilities, I cannot assess what weight to give
his opinion, though I agree the claimant’s borderline intellectual
functioning limits her to simple, routine, and repetitive tasks as
demonstrated by Dr. Wakefield’s testing and her school records.

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The court finds no error with the ALJ’s analysis. Regarding Dr. Defreitas, the

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ALJ properly discounted the doctor’s opinion because it was supported at best by minimal

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clinical findings. Specifically, the ALJ noted the negative x-ray and MRI findings. Regarding

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Dr. Wakefield, while the doctor provided no specific opinions as to occupational imitations for

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the ALJ to either adopt or reject, the ALJ accepted the limitations identified by Dr. Wakefield by

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including appropriate non-exertional limitations in his residual functional capacity finding. In

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particular, the ALJ limited plaintiff to work involving simple, routine, repetitive tasks with only

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occasional interaction with supervisors, co-workers, or the public.

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B.

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Applicability of the Listings
The Social Security Regulations “Listing of Impairments” is comprised of

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impairments to fifteen categories of body systems that are severe enough to preclude a person

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from performing gainful activity. Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990); 20

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C.F.R. § 404.1520(d). Conditions described in the listings are considered so severe that they are

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irrebuttably presumed disabling. 20 C.F.R. § 404.1520(d). In meeting or equaling a listing, all

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the requirements of that listing must be met. Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir.

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1985).

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Plaintiff argues that “the ALJ went out of his way to find that Ms. Raymond did

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not suffer from more than borderline intellectual functioning because he knew that so finding

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would require him to find her disabled under Listing 12.05C.” More specifically, plaintiff

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argues: “The ALJ stated that, although Ms Raymond tested with an IQ of 68 (which the ALJ

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never challenged so seemed to have accepted as a valid IQ score), Ms. Raymond did not have

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another impairment causing more than minimal functional limitations.” According to plaintiff,

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her back impairment, as well as her difficulties handling stress and changes in routine, constitute

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“another impairment” causing more than minimal functional limitations.

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Because, as discussed above, the court finds that remand is necessary to allow the

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agency to consider in the first instance the opinions of Drs. Reddy and Fast that plaintiff is

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limited to medium work due to back problems, it is possible that plaintiff does in fact have

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“another impairment” such that re-evaluation of the application of Listing 12.05C is also

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warranted.

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IV. CONCLUSION

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Based on the foregoing, the court concludes that this matter should be remanded

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under sentence four of 42 U.S.C. § 405(g) for further development of the record and/or further

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findings addressing the deficiencies noted above. Accordingly, the undersigned recommends

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that:

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Plaintiff’s motion for summary judgment (Doc. 14) be granted;

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Defendant’s cross motion for summary judgment (Doc. 17) be denied; and

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This matter be remanded for further proceedings.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: November 5, 2014
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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