Caren v. Commissioner of Social Security

Filing 17

MEMORANDUM AND ORDER signed by Magistrate Judge Edmund F. Brennan on 3/5/19 GRANTING 15 motion for summary judgment and DENYING 16 cross-motion for summary judgment. This matter is REMANDED for additional administrative proceedings. The Clerk is directed to enter judgment in plaintiff's favor. CASE CLOSED (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN CAREN,

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Plaintiff,

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No. 2:17-cv-2010-EFB

v.

MEMORANDUM AND ORDER

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

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Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”) denying his application for supplemental disability insurance benefits (“DIB”)

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and supplemental security income (“SSI”) pursuant to Titles II and XVI of the Social Security

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Act. The parties have filed cross-motions for summary judgment. ECF Nos. 15 & 16. For the

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reasons discussed below, plaintiff’s motion for summary judgment is granted and the

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Commissioner’s motion is denied.

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I.

BACKGROUND
Plaintiff applied for DIB and SSI on March 19, 2014. Administrative Record (“AR”) at

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189-202. His application was denied initially and upon reconsideration. Id. at 112-124. Plaintiff

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requested a hearing before an administrative law judge (id. at 127-28) and, on May 20, 2016, a

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hearing was held before administrative law judge (“ALJ”) Daniel Myers. Id. at 33-58.

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On August 3, 2016, the ALJ issued a decision finding that plaintiff was not disabled under

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the relevant sections of the Act (216(i), 223(d), and 1614(a)(3)(A)).1 Id. at 17-28. The ALJ made

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the following specific findings:

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1. The claimant meets the insured status requirements of the Social Security Act through
December 31, 2016.
2. The claimant has not engaged in substantial gainful activity since September 26, 2012, the
alleged onset date (20 CFR 404.1571 et seq. and 416.971 et seq.).

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3. The claimant has the following severe impairments: anxiety disorder; depression; and
cognitive disorder (20 CFR 404.1520(c) and 416.920(c)).
***

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Disability Insurance Benefits are paid to disabled persons who have contributed to the
Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid
to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions,
disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to
“a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) &
1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R.
§§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The
following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is found not disabled. If not, proceed
to step two.
Step two: Does the claimant have a “severe” impairment?
If so, proceed to step three. If not, then a finding of not disabled is
appropriate.
Step three: Does the claimant’s impairment or combination
of impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App.1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past
work? If so, the claimant is not disabled. If not, proceed to step
five.
Step five: Does the claimant have the residual functional
capacity to perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

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The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.
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4. The claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 416.920(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).

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***

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5. After careful consideration of the entire record, the undersigned finds that the claimant has
the residual functional capacity to perform a full range of work at all exertional levels but
with the following non-exertional limitations: the claimant can understand, remember, and
carry out simple work-related instructions. He can have no more than occasional
interaction with members of the public, co-workers, and supervisors. The claimant
requires no more than occasional changes to the routine work setting and he requires a
consistent work schedule.

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***
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6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.925).

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***

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7. The claimant was born [in] 1953 and was 58 years old, which is defined as an individual
of advanced age, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

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8. The claimant has at least a high school education and is able to communicate in English
(20 CFR 404.1564 and 416.964).

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9. Transferability of job skills is not material to the determination of disability because using
the Medical-Vocational Rules as a framework supports a finding that the claimant is “not
disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20
CFR Part 404, Subpart P, Appendix 2).

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10. Considering the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the
claimant can perform (20 CFR 416.969, 404.1569(a), 416.969, and 416.969(a)).

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***

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11. The claimant has not been under a disability, as defined in the Social Security Act, from
September 26, 2012, through the date of this decision (20 CFR 404.1520(g) and
416.920(g)).

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Id. at 19-28.
Plaintiff’s request for Appeals Council review was denied on July 28, 2017, leaving the

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ALJ’s decision as the final decision of the Commissioner. Id. at 1-3.

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II.

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LEGAL STANDARDS
The Commissioner’s decision that a claimant is not disabled will be upheld if the findings

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of fact are supported by substantial evidence in the record and the proper legal standards were

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applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000);

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Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel,

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180 F.3d 1094, 1097 (9th Cir. 1999).

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The findings of the Commissioner as to any fact, if supported by substantial evidence, are

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conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is

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more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th

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Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a

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conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.

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N.L.R.B., 305 U.S. 197, 229 (1938)).

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“The ALJ is responsible for determining credibility, resolving conflicts in medical

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testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

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2001) (citations omitted). “Where the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”

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Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

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III.

ANALYSIS

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Plaintiff argues that the ALJ erred in: (1) failing to provide clear and convincing reasons

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for rejecting the opinions of his treating doctors; and (2) failing to provide clear and convincing

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reasons for finding his allegations not credible. Plaintiff contends that he is entitled to a

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determination that he is disabled and an award of benefits. In the alternative, he contends that the

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foregoing errors warrant remand for additional administrative proceedings. As discussed below,

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remand for additional proceedings is appropriate.

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Plaintiff argues that the ALJ’s evaluation of the opinions of Drs. Regazzi (state-agency

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examining physician), Shirnoyama (treating physician), and Horton (treating physician) is

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inconsistent. The court agrees. With respect to Dr. Regazzi, the ALJ wrote:

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Dr. Regazzi opined that the claimant was not significantly impaired
in his ability to perform detailed and complex tasks versus simple
and repetitive tasks; in his ability to maintain regular attendance in
the work place; or to perform work activities on a consistent basis.
he further opined that the claimant, however, could need more
prompts and reminders than the average employee. The doctor
opined that the claimant was moderately limited in his ability to
complete a normal workday or workweek without interruptions and
in his ability to interact with coworkers and the public. In addition,
Dr. Regazzi opined that the claimant was moderately limited in his
ability to deal with the usual stresses encountered in a competitive
work environment, but not significantly limited in his ability to
accept instructions from supervisors. This opinion is consistent with
the totality of the medical evidence of records. In particular, the
claimant’s medical testing that indicated no brain abnormalities and
only mild cognitive impairment and his improved depression and
anxiety with medication. As such, I accord great weight to this
opinion.

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AR at 24-25. With respect to Drs. Shirnoyama and Horton, the ALJ wrote:
Dr. Shirnoyama, M.D. concluded that claimant had major depressive
disorder, recurrent, which caused considerable impairment in his
memory, concentration, and energy. She opined on January 20,
2015, that the claimant had a poor ability to understand and
remember detailed or complex instructions, but a fair ability to
understand and remember very short and simple instructions.
Additionally, Dr. Shirnoyama opined that the claimant had a poor
ability to carry out instructions, to attend and concentrate, and a fair
ability to work without supervision. She opined that the claimant had
a poor ability to interact with co-workers, but a fair ability to interact
with the public and supervisors. Furthermore, she opined that the
claimant had a poor ability to adapt to changes in the workplace and
to use public transportation to travel to strange places. This opinion
is consistent with the totality of the medical evidence. In particular,
the claimant’s medical testing indicated no brain abnormalities and
only mild cognitive impairment and his improved depression and
anxiety with medication. As such, I accord some weight to this
opinion.

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W.L. Horton, M.D. on May 17, 2016 concluded that the claimant’s
depression and anxiety limited his functioning, but the claimant had
a good long-term prognosis. He opined that the claimant had poor
ability to understand and remember detailed or complex instruction,
to carry out instructions, and to attend and concentrate. He opined
further that the claimant had a fair ability to understand and
remember very short and simple instructions and to work without
supervision. Dr. Horton opined further that the claimant had a poor
ability to interact with co-workers, to adapt to changes in the
workplace, and to use public transportation to travel to unfamiliar
places. He opined further that the claimant had a fair ability to
interact with the public and supervisors and to be aware of normal
hazards and react appropriately. This opinion is consistent with the
totality of the medical evidence. In particular, the claimant’s medical
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testing that indicated no brain abnormalities and only mild cognitive
impairment and his improved depression and anxiety with
medication. As such I accord some weight to this opinion.

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Id. at 25. The ALJ wrote that each of these opinions was “consistent with the totality of the

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medical evidence,” but declined to square that assertion with the obvious inconsistencies between

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the opinion of Regazzi and those of the treating physicians. For example and as noted supra,

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Regazzi opined that plaintiff was moderately limited in his ability to interact with coworkers and

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not significantly limited in his ability to accept instructions from supervisors. By contrast, Drs.

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Shirnoyama and Horton rated plaintiff’s abilities to interact with coworkers and carry out

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instructions as “poor.” Id. at 414, 442-43. “Poor,” for the purposes of the treating doctors’

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medical statements meant “[t]he evidence supports the conclusion that the individual cannot

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usefully perform or sustain the activity.” Id. at 414, 442. And these inconsistencies are not

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immaterial. The ALJ concluded that, in performing work, plaintiff could have occasional

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interaction with co-workers and could carry out2 simple instructions – a finding that conflicted

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with the opinions of the treating doctors. Id. at 21.

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The court finds it impossible to massage, either by inference or assumption, the foregoing

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inconsistencies in the ALJ’s opinion. If each opinion is consistent with the medical evidence,

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then why accord great weight to one and only some weight to the other two? And, if each

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opinion is supported by the medical evidence, how can their disparate conclusions as to plaintiff’s

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abilities be reconciled? If the ALJ believed that Dr. Regazzi was right (or, at the very least, more

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right) and Drs. Shirnoyama and Horton were wrong as to plaintiff’s capacity to work, it behooved

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him to explain that finding. As it stands, the ALJ’s decision attempts to have it both ways – it

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simultaneously credits and discounts the opinions of the treating doctors without parsing good

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from bad. Thus, the ALJ has failed to meet the requisite “specific and legitimate” standard for

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discounting these opinions. See Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“Even if

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The court recognizes that both Drs. Shirnoyama and Horton rated plaintiff’s ability to
understand and remember “very short and simple instructions” as fair. AR at 414, 442. Both
differentiated that ability with his ability to carry out instructions, which each rated poor. Id.
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the treating doctor’s opinion is contradicted by another doctor, the ALJ may not reject this

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opinion without providing ‘specific and legitimate reasons’ supported by substantial evidence in

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the record.”).

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The only question that remains is whether to remand for payment of benefits or for

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additional proceedings. The latter is more appropriate here. “The decision whether to remand a

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case for additional evidence, or simply to award benefits is within the discretion of the court.”

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Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). A court should remand for further

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administrative proceedings, however, unless it concludes that such proceedings would not serve a

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useful purpose. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2016). Under the foregoing

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standard, a remand for additional proceedings is proper. That the ALJ failed to adequately justify

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his decision to discount the treating doctors’ opinions in this instance does not compel a finding

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that he is categorically unable to do so.

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IV.

CONCLUSION

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s motion for summary judgment (ECF No. 15) is GRANTED;

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2. The Commissioner’s cross-motion for summary judgment (ECF No. 16) is DENIED;

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3. This matter is REMANDED for additional administrative proceedings; and

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4. The Clerk is directed to enter judgment in plaintiff’s favor and close the case.

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DATED: March 5, 2019.

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