Nash v. Astrue et al

Filing 18

ORDER Granting 11 Plaintiff's Motion for Summary Judgment; and Denying 13 Defendant's Cross-Motion for Summary Judgment; The findings and conclusions of the Magistrate Judge presented in the 17 Report and Recommendation are Adopted in their entirety. It is Ordered that this action be remanded to the Commissioner of the Social Security Administration for an award of benefits consistent with this opinion. The Clerk of Court shall enter judgment in accordance with this Order. Signed by Judge Gonzalo P. Curiel on 3/25/2014. (srm) (CC: Social Security Administration)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TERRY ANN NASH,
Plaintiff,

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CASE NO. 12-CV-02781-GPC (RBB)

vs.

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CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

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Defendant.

ORDER GRANTING
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AND
DENYING DEFENDANT’S
CROSS-MOTION FOR
SUMMARY JUDGMENT
[Dkt. Nos. 11, 13]

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INTRODUCTION

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On November 16, 2012, Plaintiff filed this action pursuant to Section 405 of the

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Social Security Act (“Act”). (Compl., Dkt. No. 1); 42 U.S.C. § 1383(c). Plaintiff seeks

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judicial review of the Commissioner of Social Security Administration’s1

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(“Commissioner’s”) final decision denying Plaintiff’s application for Supplemental

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Security Income (“SSI”) under Title XVI of the Act. (Compl., Dkt. No. 1.) The matter

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before the Court is the Report and Recommendation (“Report”) filed by United States

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Magistrate Judge Ruben B. Brooks recommending that Plaintiff’s Motion for Summary

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Judgment (Dkt. No. 11) be granted and Defendant’s Cross-Motion for Summary

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Judgment (Dkt. No. 13) be denied. (Dkt. No. 17.) After careful consideration of the

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Defendant’s Motion indicates that Carolyn W. Colvin has replaced Astrue as the
Acting Commissioner of Social Security. Colvin is therefore substituted for her
28 predecessor pursuant to Federal Rule of Civil Procedure 25(d).
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pleadings and relevant exhibits submitted by the parties, and for the reasons set forth

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below, this Court ADOPTS the Magistrate Judge’s Report in its entirety. It is further

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ordered that this action be remanded to the Social Security Administration for further

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consideration consistent with this opinion.
BACKGROUND2

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On January 8, 2009, Plaintiff filed an application for SSI benefits with the

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Commissioner, alleging disability beginning on June 25, 1997, due to Meniere’s

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disease, depression, anxiety disorder, vertigo, and back and neck problems.

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(Administrative Record (“A.R.”) 26, 263, Dkt. No. 9.) Plaintiff’s claim was denied at

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the initial level and again upon reconsideration. (Id. at 126-30, 131-35, 136-40.) On

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July 2, 2010, Plaintiff appeared with counsel and testified before Administrative Law

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Judge (“ALJ”) Eve Godfrey. (Id. at 47.) On July 30, 2010, the ALJ issued a written

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decision finding that Plaintiff was not entitled to a period of disability or disability

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insurance benefits under Sections 216(I), 223(d), and 1614(a)(3)(A) of the Act. (Id.

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at 26-38.) The ALJ’s decision became the final decision of the Commissioner when

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the Appeals Council denied Plaintiff’s request for a review of the decision on

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September 26, 2012. (Id. at 1-7.)

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On November 16, 2012, Plaintiff commenced the instant action seeking judicial

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review of Defendant’s decision. (Compl., Dkt. No. 1). On March 25, 2013, Plaintiff

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filed a Motion for Summary Judgment. (Dkt. No. 11.) On April 19, 2013, Defendant

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filed a Cross-Motion for Summary Judgment. (Dkt. No. 13.) On January 24, 2014, the

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Magistrate Judge issued a Report recommending that Plaintiff’s Motion for Summary

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Judgment be granted, Defendant’s Cross-Motion for Summary Judgment be denied,

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and that the case be remanded for an award of benefits. (Dkt. No. 17.) The docket

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reflects that no objections to the Report have been filed by either party by the February

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10, 2014 deadline. (See id.)

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The underlying facts set forth in the Report are adopted in toto and referenced
as if fully set forth herein. This Court provides only a brief procedural background.
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DISCUSSION

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I. Legal Standard

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The district court’s duties in connection with a Report of a magistrate judge are

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set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district

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judge must “make a de novo determination of those portions of the report . . . to which

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objection is made,” and “may accept, reject, or modify, in whole or in part, the findings

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or recommendations made by the magistrate.” 28 U.S.C. § 636(b). The district court

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need not review de novo those portions of a Report to which neither party objects. See

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Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328

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F.3d 114, 1121-22 (9th Cir. 2003) (en banc). When no objections are filed, the Court

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may assume the correctness of the magistrate judge’s findings of fact and decide the

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motion on the applicable law. Campbell v. United States Dist. Court, 501 F.2d 196,

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206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001).

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A court “will disturb the denial of benefits only if the decision contains legal error or

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is not supported by substantial evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1038

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(9th Cir. 2008) (citations omitted). Substantial evidence is “such relevant evidence as

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a reasonable mind might accept as reasonable to support a conclusion. Id. The

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“evidence must be more than a mere scintilla but not necessarily a preponderance.”

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Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). The court

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will uphold the ALJ’s conclusion when the evidence is susceptible to more than one

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rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Finally,

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the court will not reverse an ALJ’s decision for harmless error, which exists when it is

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clear from the record that “the ALJ’s error was ‘inconsequential to the ultimate

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nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th

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Cir. 2006) (quoting Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055–56

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(9th Cir. 2006)).

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II. Analysis

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The Court received no objections to the Report and no requests for an extension

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of time to file any objections. As such, the Court assumes the correctness of the

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magistrate judge’s factual findings and adopts them in full. See Campbell, 501 F.2d

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at 206. The Court has conducted an independent review of the Report and all relevant

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papers submitted by both parties, and finds that the Report provides a cogent analysis

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of the claims presented in Plaintiff’s Motion for Summary Judgment and Defendant’s

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Cross-Motion for Summary Judgment.

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A. The ALJ’s Rejection of Medical Expert Opinion in Determining that
Plaintiff’s Condition does not Meet Listing 12.03 Criteria constituted Error.

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After reviewing the Report, the administrative record, and the submissions of the

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parties, the Court finds that the Magistrate Judge correctly determined that the ALJ’s

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determination at Step 3 of the Sequential Evaluation Process (A.R., Dkt. No. 9 at 29-

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30) was deficient because the ALJ’s decision “does not articulate adequate reasons

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supported by substantial evidence for rejecting the opinion of the impartial medical

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expert.” (Report, Dkt. No. 17 at 29) (citing Davis v. Astrue, 444 F. App’x 151, 152

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(9th Cir. 2011)). At Step 3 of the instant case, the ALJ rejected the testimony and

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opinion of medical expert, Dr. Jonas, that Plaintiff’s psychiatric condition meets the

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criteria of listing 12.03. (Report, Dkt. No. 17 at 26.) The ALJ “may reject the opinion

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of a nonexamining physician by reference to specific evidence in the medical record.”

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Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). The Magistrate Judge noted

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the ALJ’s stated rationale for rejecting Dr. Jonas’s opinion was “Plaintiff’s self-

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assessment of her condition,” (Report, Dkt. No. 17 at 26), despite the fact that

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Plaintiff’s beliefs regarding her ability to work were less optimistic than the ALJ

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described. (Id. at 29.) The ALJ also rejected Dr. Jonas’s testimony based on the

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expert’s disagreement with Plaintiff’s treating physician, who had “assessed

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[Plaintiff’s] social functioning at unimpaired.” (A.R., Dkt. No. 9 at 34.) The Magistrate

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Judge noted, however, that this was factually inaccurate, because Plaintiff’s treating
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physician had “opined that her symptoms caused ‘clinically important distress,

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impairing work, social and personal functioning,’ and found Plaintiff markedly limited

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in her ability to work with others without being distracted by them.” (Report, Dkt. No.

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17 at 27-28.) The Magistrate Judge correctly found that the ALJ’s rejection of the

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impartial medical expert’s opinion was not supported by substantial evidence. (Id. at

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29.)

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B. The ALJ Erred in Rejecting the Functional Capacity Opinions of the
Consultative and Treating Psychiatrists.

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The Magistrate Judge correctly concluded that the ALJ’s Residual Functional

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Capacity (“RFC”) determination at Step 4 is deficient as a result of the ALJ’s rejecting

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the functional capacity opinions of consultive psychiatrist Dr. Glassman and treating

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psychiatrist Dr. Rodarte. (Report, Dkt. No. 17 at 29.) The opinion of an examining

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doctor, if contradicted by another doctor, may be rejected only for “specific and

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legitimate” reasons supported by substantial evidence in the record. Andrews v.

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Shalala, 53 F.3d at 1043; Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The

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ALJ’s sole stated rationale for rejecting examining doctor Dr. Glassman’s functional

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capacity opinion was that “the consultative psychiatric evaluation was performed on

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March 21, 2009, which was before [Plaintiff] was stabilized on Lithium; therefore, less

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weight can be given to the opinion of Dr. Glassman, the consultative psychiatrist, than

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he would ordinarily merit.” (A.R., Dkt. No. 9 at 34.) The Magistrate Judge correctly

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concluded that the ALJ “overstated Plaintiff’s positive response to treatment and

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understated the evidence that [Plaintiff] continued to exhibit symptoms of a mental

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impairment despite compliance with her medication, [and t]hus, to the extent Dr.

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Glassman’s opinion was given less weight based on the assertion that Nash stabilized

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on lithium, that conclusion is not supported by the record.” (Report, Dkt. No. 17 at 35.)

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Generally, a treating physician’s opinion must be accorded controlling weight

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if it “is well-supported by medically acceptable clinical and laboratory diagnostic

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techniques and is not inconsistent with the other substantial evidence in [the] case
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record….” 20 C.F.R. § 404.1527(c)(2). “If the treating physician’s opinion is not given

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controlling weight, the following factors are applied in determining what weight to give

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the opinion: (1) the length of the treatment relationship and the frequency of

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examination, (2) the nature and extent of the treating relationship, (3) the relevant

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evidence supporting the opinion, (4) the consistency of the opinion with the record as

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a whole, (5) the specialization of the treating physician, and (6) any other factors

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brought to the attention of the ALJ which tend to support or contradict the opinion.

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(Report, Dk. No. 17 at 30) (citing 20 C.F.R. § 404.1527(c)(2)(I)-(ii), (c)(3)-(6)).” If

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the treating physician’s opinion is contradicted, “[t]he ALJ must give specific,

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legitimate reasons for disregarding the opinion of the treating physician.” Batson v.

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Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (quoting Matney v.

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Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)). The Magistrate Judge stated that the

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“ALJ’s conclusion that Dr. Rodarte’s opinion should be given less weight

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oversimplifies and discounts the value of the longitudinal history provided by the

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totality of the treatment records,” and found that “the medical evidence, including the

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opinion of the evaluating psychiatrist Dr. Glassman and the medical expert Dr. Jonas,

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amply support Dr. Rodarte’s opinion.” (Report, Dkt. No. 17 at 40.) The Magistrate

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Judge correctly concluded that it constituted error for the “ALJ...to assign less weight

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to Dr. Rodarte’s opinion [without] legitimate and specific reasons supported by the

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record.” (Id.)

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C. In determining Plaintiff’s Residual Functional Capacity, the ALJ Failed

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to Provide Clear & Convincing Reasons for Finding Plaintiff’s Testimony Not

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Credible.

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The Magistrate Judge correctly concluded that the ALJ’s Residual Functional

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Capacity (“RFC”) determination at Step 4 is further deficient as a result of the ALJ’s

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failure to provide clear and convincing reasons for finding Plaintiff’s testimony not

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credible. (Report, Dkt. No. 17 at 55.) To support a finding that the plaintiff was not

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credible, the ALJ must “‘point to specific facts in the record which demonstrate that
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[the plaintiff] is in less pain than she claims.’” Vasquez v. Astrue, 572 F.3d 586, 592

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(9th Cir. 2009) (quoting Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)). The ALJ

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must make specific findings “stat[ing] which pain testimony is not credible and what

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evidence suggests the complaints are not credible.” Dodrill, 12 F.3d at 918. The Court

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must determine whether the ALJ provided clear and convincing reasons for the adverse

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credibility finding that are supported by the evidence in the record. See Reddick v.

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Chater, 157 F.3d at 722 (quoting Lester v. Chater, 81 F.3d at 834). The Magistrate

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Judge found that the ALJ’s proffered reasons for the adverse credibility finding were

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insufficient and “not supported by the record.” (Record, Dkt. No. 17 at 49.) The

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Magistrate Judge properly determined that the ALJ “failed to provide clear and

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convincing reasons for finding Plaintiff’s testimony not credible,” which constitutes

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legal error. (Id. at 55.)

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D. Remand for Award of Benefits.

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The Magistrate Judge accurately concluded that a remand for an award of

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benefits is proper here. (Record, Dkt. No. 17 at 57.) The Ninth Circuit has stated that:
[T]he district court should credit evidence that was rejected during the
administrative process and remand for an immediate award of benefits
if (1) the ALJ failed to provide legally sufficient reasons for rejecting
the evidence; (2) there are no outstanding issues that must be resolved
before a determination of disability can be made; and (3) it is clear from
the record that the ALJ would be required to find the claimant disabled
were such evidence credited.

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Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citing Harman v. Apfel, 211

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F.3d 1172, 1178 (9th Cir. 2000)). The Magistrate Judge properly concluded that the

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“ALJ did not provide legally sufficient reasons for rejecting” the psychiatrists’

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opinions, and that “it is clear from the record that the ALJ would be required to find

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Plaintiff disabled if she had properly credited” their opinions. (Report, Dkt. No. 17 at

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56.) The ALJ therefore correctly determined that “a remand for an award of benefits

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is proper.” (Id. at 57.)

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//

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CONCLUSION AND ORDER

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For the reasons set forth above, IT IS HEREBY ORDERED that:

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The findings and conclusions of the Magistrate Judge presented in the
Report and Recommendation are ADOPTED in their entirety;

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Plaintiff’s Motion for Summary Judgment is GRANTED; and

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3.

Defendant’s Cross-Motion for Summary Judgment is DENIED.

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IT IS FURTHER ORDERED that this action be remanded to the

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Commissioner of the Social Security Administration for an award of benefits consistent

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with this opinion. The Clerk of Court shall enter judgment in accordance with this

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Order.
IT IS SO ORDERED.
DATED: March 25, 2014

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HON. GONZALO P. CURIEL
United States District Judge

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