Shockency v. Commissioner of Social Security

Filing 19

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/25/19 GRANTING 15 Motion for Summary Judgment; DENYING 18 Motion for Summary Judgment. The matter is REMANDED for further proceedings consistent with this order; and The Clerk is directed to enter judgment in Plaintiffs favor and close the case. CASE CLOSED. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSIAH CHANDLER SHOCKENCY, 12 Plaintiff, 13 14 15 No. 2:17-cv-2427-EFB v. ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant. 16 17 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 18 19 (“Commissioner”) denying his application for Supplemental Security Income (“SSI”) under Title 20 XVI of the Social Security Act. The parties have filed cross-motions for summary judgment. 21 ECF Nos. 15 & 18. For the reasons discussed below, plaintiff’s motion is granted, the 22 Commissioner’s motion is denied, and the matter is remanded for further proceedings. 23 I. 24 Background On January 28, 2014, plaintiff filed an application for SSI, alleging that he had been 25 disabled since birth. Administrative Record (“AR”) at 162-71. Plaintiff was a minor at the time 26 the application was filed but turned eighteen on March 4, 2014. Id. at 162. His application was 27 denied initially and upon reconsideration. Id. at 98-102, 106-10. Thereafter, a hearing was held 28 before Administrative Law Judge (“ALJ”) Sharon L. Madsen. Id. at 42-68. 1 1 On October 5, 2016, the ALJ issued a decision finding that plaintiff was not disabled 2 under section 1614(a)(3)(A) of the Act.1 Id. at 14-30. The ALJ made the following specific 3 4 5 6 7 1 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: 8 9 10 11 12 13 14 15 16 17 18 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. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 19 20 21 22 23 24 25 26 27 28 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. To qualify for disability child benefits, a child under the age of 18 must have “a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(1). A threestep sequential evaluation governs eligibility for child benefits. 20 C.F.R. § 416.924. 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 2 1 2 3 4 5 6 7 findings: 1. The claimant was born on March 4, 1996 and was therefore in the “Adolescent (age 12 to attainment of age 18)” age group on January 28, 2014, the date the application was filed (e.g., 20 CFR 416.926a(g)(2)(v)). H [sic] attained age 18 on March 3 [sic], 2014 (20 CFR 416.120(c)(4)). 2. The claimant has not engaged in substantial gainful activity since the date the application was filed (20 CFR 416.924(b) and 416.972). 3. Before attaining age 18, the claimant had the following severe impairments: autism spectrum disorder and an anxiety disorder (20 CFR 416.924(c)). 8 *** 9 10 11 4. Before attaining age 18, the claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1, Part A or B (20 CFR 416.920(d), 416.924, 416.925 and 416.926). 12 *** 13 14 15 5. Before attaining age 18, the claimant did not have an impairment or combination of impairments that functionally equaled the listings (20 CFR 416.924(d) and 416.926a). *** 16 17 18 19 20 21 22 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 conclusively presumed disabled. If not, the claimant is not disabled. 20 C.F.R. § 416.924. 23 24 25 26 27 28 At step three the determination of whether an impairment or combination of impairments functionally equals a listing requires the ALJ to assess the claimant in six “broad areas of functioning intended to capture all of what a child can or cannot do,” which are referred to as “domains”: “(i) Acquiring and using information; (ii) Attending and completing tasks; (iii) Interacting and relating with others; (iv) Moving about and manipulating objects; (v) Caring for yourself; and, (vi) Health and physical well-being.” 20 C.F.R. § 416.926a(b)(1)(i)-(vi). To functionally equal the listings, the child’s “impairment(s) must be of listing-level severity; i.e., it must result in “marked” limitations in two domains of functioning or an “extreme” limitation in one domain.” C.F.R. § 416.926a(a). 3 1 6. Because the claimant did not have an impairment or combination of impairments that met, medically equaled any listing or functionally equaled the listings, he was not disabled prior to attaining age 18 (20 CFR 416.924(a)). 2 3 7. The claimant has not developed any new impairment or impairments since attaining age 18. 4 5 8. Since attaining age 18, the claimant has continued to have a severe impairment or combination of impairments (20 CFR 416.920(c)). 6 *** 9. Since attaining age 18, the claimant has not had an impairment or combination of impairments that meets or medically equals a listed impairment (20 CFR 416.920)). 7 8 9 *** 10 10. After careful consideration of the entire record, I find that, since attaining age 18, the claimant has had the residual functional capacity to perform a full range of work at all exertional levels but he has been limited to performing only simple routine tasks with occasional contact with the public and coworkers. 11 12 13 *** 14 11. The claimant has no past relevant work (20 CFR 416.965). 15 12. The claimant is currently a “younger individual age 18-44” (20 CFR 416.963 16 13. The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964) 17 18 14. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968). 19 15. Since attaining age 18, considering the claimant’s age, education, work experience, and residual functional capacity, jobs have existed in significant numbers in the national economy that the claimant has been able to perform (20 CFR 416.960(c) and 416.966). 20 21 22 *** 23 16. The claimant has not been under a disability, as defined by the Social Security Act, since March 3, 2014 [sic], the day he attained age 18, through the date of this decision (20 CFR 416.924(a) 416.920(g)). 24 25 26 Id. at 18-30. 27 ///// 28 ///// 4 1 2 Plaintiff’s request for Appeals Council review was denied on September 29, 2017, leaving the ALJ’s decision as the final decision of the Commissioner. Id. at 1-5. 3 II. Legal Standards 4 The Commissioner’s decision that a claimant is not disabled will be upheld if the findings 5 of fact are supported by substantial evidence in the record and the proper legal standards were 6 applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); 7 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 8 180 F.3d 1094, 1097 (9th Cir. 1999). 9 The findings of the Commissioner as to any fact, if supported by substantial evidence, are 10 conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is 11 more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th 12 Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a 13 conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 14 N.L.R.B., 305 U.S. 197, 229 (1938)). 15 “The ALJ is responsible for determining credibility, resolving conflicts in medical 16 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 17 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 18 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 19 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 20 III. Analysis 21 Plaintiff argues that the ALJ committed two errors. First, he argues that the ALJ 22 impermissibly rejected, without explanation, the opinions of treating psychologists Jason 23 Christopherson and Elizabeth Ganiron. ECF No. 15-2 at 15-22. Second, he argues that the ALJ 24 erred in assessing plaintiff’s mental limitations by failing to account for his need for a supportive 25 living environment. Id. at 22-26. As explained below, the court finds plaintiff’s first argument 26 persuasive and remands for further proceedings on that basis.2 27 28 2 Because the matter must be remanded for further consideration of the medical opinion 5 1 A. 2 The weight given to medical opinions depends in part on whether they are proffered by Relevant Legal Standards 3 treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 4 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a 5 greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 6 F.3d 1273, 1285 (9th Cir. 1996). To evaluate whether an ALJ properly rejected a medical 7 opinion, in addition to considering its source, the court considers whether (1) contradictory 8 opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an 9 uncontradicted opinion of a treating or examining medical professional only for “clear and 10 convincing” reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or 11 examining medical professional may be rejected for “specific and legitimate” reasons that are 12 supported by substantial evidence. Id. at 830. While a treating professional’s opinion generally 13 is accorded superior weight, if it is contradicted by a supported examining professional’s opinion 14 (e.g., supported by different independent clinical findings), the ALJ may resolve the conflict. 15 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 16 747, 751 (9th Cir. 1989)). However, “[w]hen an examining physician relies on the same clinical 17 findings as a treating physician, but differs only in his or her conclusions, the conclusions of the 18 examining physician are not ‘substantial evidence.’” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 19 2007). 20 B. 21 Dr. Christopherson, Psy.D., and Dr. Ganiron, Psy.D., performed a psychological Opinion Evidence 22 evaluation for the purposes of assessing plaintiff’s eligibility for services from Central Valley 23 Regional Center (“CVRC”). AR 347-58. Based on their examinations and plaintiff’s testing 24 results, Dr. Christopherson and Dr. Ganiron diagnosed plaintiff with Autistic Spectrum Disorder 25 with mild to moderate symptoms. Id. at 354, 357. They opined that plaintiff has deficits in social 26 emotion reciprocity; nonverbal communication behavior; and developing, maintaining, and 27 28 evidence, the court declines to reach plaintiff’s second argument. 6 1 understanding relationships. They concluded plaintiff has restricted, repetitive patterns of 2 behavior, interests, or activities requiring plaintiff to have support. In that regard, Dr. 3 Christopherson and Dr. Ganiron noted that plaintiff is excessively fixated on routines and rules, 4 and he becomes highly agitated when routines are disturbed. Id. at 355-56. It was also their 5 opinion that plaintiff’s symptoms impacted age appropriate socialization and maintaining danger 6 awareness, precluding plaintiff from being completely independent without some level of 7 supervision on a long-term basis. Id. 8 9 Plaintiff underwent another psychological evaluation, which was conducted by Lance Portnoff, Ph.D. Id. at 327-31. Dr. Portnoff concluded that plaintiff has Autism Spectrum 10 Disorder, and that he was functionally in the minimal range. Id. at 330. Dr. Portnoff opined that 11 plaintiff had no limitations in responding appropriately to usual or routine work situations; mild 12 to moderate limitations in dealing with unexpected changes in a routine work setting; and 13 moderate limitations in responding appropriately to co-workers, supervisors, and the public. Id. 14 at 331. He further opined that plaintiff was capable of understanding, carrying out, and 15 remembering simple instructions. Id. 16 17 In a January 2016 treatment note, Dr. Edgar Castillo opined that plaintiff was unable to be assertive and to work under pressure. AR 388. 18 The record also contains two opinions from non-examining physicians, Dr. E. Anquino- 19 Caro and Dr. G. Ikawa. Both physicians opined that plaintiff was capable of performing simple 20 tasks, yet has moderate limitation in interacting appropriately with the general public and getting 21 along with coworkers or peers without distracting them. Id. at 73, 77-78, 88, 92. 22 C. 23 In assessing plaintiff’s residual functional capacity (“RFC”), the ALJ assigned little Discussion 24 weight to Dr. Castillo’s treating opinion, while giving significant weight to Dr. Portnoff’s 25 examining opinion and Drs. Aquino-Caro and Ikawa’s non-examining opinions. The ALJ’s 26 decision cited to Dr. Christopherson and Dr. Ganiron’s report, but did not discuss their examining 27 ///// 28 ///// 7 1 opinion nor state what weight, if any, it was given.3 Plaintiff argues that the ALJ was required to 2 weigh Dr. Christopherson and Dr. Ganiron’s opinion, and the failure to do so requires remand for 3 further proceedings. ECF No. 15-2 at 18-22. The Commissioner argues, without citation to any 4 authority, that the ALJ was not required to weigh Dr. Christopherson and Dr. Ganiron’s opinion 5 because their report specifically disclaimed it was “not a substitute for a . . . Social Security 6 Disability Evaluation, or other psychological evaluation.” ECF No. 18 at 12 (quoting AR 347). 7 As noted by the Commissioner, Dr. Christopherson and Dr. Ganiron’s report specifically 8 stated that plaintiff’s “evaluation was conducted by contract with CVRC to assist in eligibility 9 determination, and as such, it is not a substitute for a formal . . . Mental Health Assessment, . . . 10 Social Security Disability Evaluation, or other psychological evaluation.” AR 347. That 11 disclaimer, however, does not alter the standard by which these doctors’ opinions must be 12 evaluated nor excuse the ALJs failure to consider and weigh Drs. Christopherson and Ganiron’s 13 opinions, which specifically addressed plaintiff’s functional limitations. 14 An ALJ is required to consider and weigh all medical opinion evidence. 20 C.F.R. 15 § 416.927(b) and (c); see Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (“Where an ALJ 16 does not explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting 17 one medical opinion over another, he errs.”); Flores v. Shalala, 49 F.3d 562, 570 (9th Cir. 1995) 18 (An ALJ “may not reject ‘significant probative evidence’ without explanation.”). The 19 Commissioner’s regulations define medical opinions as “statements from acceptable medical 20 sources that reflect judgments about the nature and severity of [the claimant’s] impairment(s),” 21 including physical or mental limitations resulting from the claimant’s impairments. 20 C.F.R. 22 § 416.927(a)(1). Of particular relevance here, an ALJ may not disregard a medical opinion 23 simply because it was proffered for a purpose other than assessing eligibility for disability 24 benefits. See Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) (“The purpose for which medical 25 26 27 28 3 Contrary to plaintiff’s contention, Dr. Christopherson and Dr. Ganiron were not treating physicians. Their report indicates that they are employed by the Sullivan Center for Children and their “evaluation was conducted by contract with CVRC . . . .” AR 347. The record reflects plaintiff received treatment from CVRC, but there is nothing in the record suggesting he received treatment from Dr. Christopherson and Dr. Ganiron or the Sullivan Center for Children. 8 1 reports are obtained does not provide a legitimate basis for rejecting them.”); Booth v. Barnhart, 2 181 F. Supp. 1099, 1105 (9th Cir. 2002) (“[T]he ALJ may not disregard a physician’s medical 3 opinion simply because it was initially elicited in a state workers’ compensation proceeding, or 4 because it is couched in the terminology used in such proceedings.”). 5 Accordingly, the ALJ was required to assess the weight to be given to Dr. Christopher and 6 Dr. Ganiron’s opinion, and could not reject their assessed limitations absent legally sufficient 7 reasons. Garrison, 759 F.3d at 1012. 8 The Commissioner further argues that any error in failing to address Dr. Christopherson 9 and Dr. Ganiron’s opinion was harmless because proper consideration of the opinion would not 10 alter the ALJ’s ultimate disability determination. ECF No. 18 at 12-15; see Holloway v. 11 Berryhill, 2017 WL 5508512, at * 5 (C.D. Cal. Nov. 16, 2017) (“Because plaintiff has not shown 12 that full consideration of Dr. Pechman’s opinions would alter the ALJ’s RFC determination or 13 ultimate decision, the ALJ’s failure to properly reject those opinions was harmless.”). She 14 advances three arguments in support of this position. First, she contends that Dr. Christopherson 15 and Dr. Ganiron’s opinion is substantially similar to that of Dr. Portnoff. She argues that because 16 the ALJ afforded great weight to Dr. Portnoff’s opinion, the failure to specifically mention Dr. 17 Christopherson and Dr. Ganiron’s opinion was inconsequential. ECF No. 18 at 13-14. Second, 18 she argues that the ALJ’s reasons for rejecting Dr. Edgar Castillo’s opinion, which was more 19 restrictive, would apply equally to Dr. Christopherson and Dr. Ganiron’s opinion. Id. at 14-15. 20 Third, the Commissioner argues the error was harmless because the ALJ gave significant weight 21 to the opinion of non-examining physician Dr. Ikawa, who considered Dr. Christopherson and Dr. 22 Ganiron’s report in reaching his opinion that plaintiff could perform simple, routine tasks with 23 occasional interaction with others. Id. at 15. None of the arguments are persuasive. 24 Neither Dr. Castillo’s opinion nor Dr. Portnoff’s opinion were sufficiently similar to Dr. 25 Christopherson and Dr. Ganiron’s opinion. Dr. Castillo only opined that plaintiff was unable to 26 be assertive and to work under pressure, which fails to account for many of limitations assessed 27 by Dr. Christopherson and Dr. Ganiron, including plaintiff’s limitations related to social 28 interactions and need for some level of supervision. AR 388. Likewise, Dr. Portnoff’s assessed 9 1 limitations are not fully consistent with Dr. Christopherson and Dr. Ganiron’s opinion. For 2 instance, Dr. Portnoff concluded plaintiff is only mildly to moderately impaired in dealing with 3 unexpected changes, while Dr. Christopherson and Dr. Ganiron concluded plaintiff is excessively 4 fixated on routines and becomes highly agitated when they change. 5 Lastly, there is no merit to the Commissioner argument that the ALJ’s error was harmless 6 because she afforded significant weight to the opinion of non-examining physician Dr. Ikawa, 7 who considered Dr. Christopherson and Dr. Ganiron’s report in reaching his opinion. The 8 argument runs contrary to the hierarchy of medical opinion evidence established by the 9 Commissioner’s regulations and ignores the policy behind affording greater weight to physicians 10 who have actually had the opportunity to exam the claimant. See Lester, 81 F.3d at 834. 11 Furthermore, endorsing the argument would permit an ALJ to adopt a non-examining opinion 12 over a treating opinion so long as the non-examining physician was provided an opportunity to 13 review the other opinions of record. Obviously, that result is not permitted under controlling 14 authority. 15 Accordingly, the matter must be remanded to allow the ALJ to properly consider all 16 opinion evidence of record. 17 IV. Conclusion 18 Accordingly, it is hereby ORDERED that: 19 1. Plaintiff’s motion for summary judgment is granted; 20 2. The Commissioner’s cross-motion for summary judgment is denied; 21 3. The matter is remanded for further proceedings consistent with this order; and 22 4. The Clerk is directed to enter judgment in plaintiff’s favor and close the case. 23 DATED: March 25, 2019. 24 25 26 27 28 10

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