McClure v. Colvin

Filing 25

REPORT AND RECOMMENDATION re Cross-Motions for Summary Judgment (ECF No. 19 , 21 ). Signed by Magistrate Judge Robert N. Block on 4/17/2018.(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER JOSEPH MCCLURE,

Case No.: 3:16-cv-2515-JLS-RNB

Plaintiff,

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v.

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REPORT AND
RECOMMENDATION REGARDING
CROSS-MOTIONS FOR SUMMARY
JUDGMENT

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1

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Defendant.

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(ECF Nos. 19, 21)

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This Report and Recommendation is submitted to the Honorable Janis L.

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Sammartino, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil

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Local Rule 72.1(c).

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On October 7, 2016, plaintiff Christopher Joseph McClure filed a Complaint

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pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner

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of Social Security denying his applications for a period of disability and disability

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insurance benefits and for Supplemental Security Income benefits. (See ECF No. 1.)

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Plaintiff then filed an Amended Complaint on November 10, 2016. (See ECF No. 5.)

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Nancy A. Berryhill is hereby substituted as the defendant in this case per Fed. R. Civ.
P. 25(d).
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Now pending before the Court and ready for decision are the parties’ cross-motions

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for summary judgment. For the reasons set forth herein, the Court RECOMMENDS that

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plaintiff’s motion for summary judgment be GRANTED, that the Commissioner’s cross-

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motion for summary judgment be DENIED, and that Judgment be entered reversing the

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decision of the Commissioner and remanding this matter for further administrative

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proceedings.

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I.

PROCEDURAL BACKGROUND

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On October 15, 2012, plaintiff filed applications for a period of disability and

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disability insurance benefits and for Supplemental Security Income benefits, alleging

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disability beginning on January 25, 2009 due to a mood disorder and a history of the

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following: (1) cardiomyopathy, (2) poly-substance abuse, and (3) alcohol abuse.

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(Administrative Record (“AR”) 11, 175-82.) After his applications were denied initially

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and upon reconsideration (AR 58, 72, 89, 106), plaintiff requested an administrative

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hearing before an administrative law judge (“ALJ”). (AR 131-32.) An administrative

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hearing was held on January 22, 2015. Plaintiff appeared at the hearing with counsel, and

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testimony was taken from her and a vocational expert. (AR 26-43.)

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As reflected in his March 25, 2015 hearing decision, the ALJ rendered an

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unfavorable decision, finding plaintiff not disabled under the Social Security Act based on

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either of his applications. (AR 21.) The ALJ’s decision became the final decision of the

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Commissioner on August 9, 2016, when the Appeals Council denied plaintiff’s request for

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review. (AR 1-4.) This timely civil action followed.

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II.

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In rendering his decision, the ALJ followed the Commissioner’s five-step sequential

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evaluation process. See 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that

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plaintiff had not engaged in substantial gainful activity since January 25, 2009, the alleged

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onset date. (AR 11.)

SUMMARY OF THE ALJ’S FINDINGS

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At step two, the ALJ found that plaintiff had the following severe impairments: a

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mood disorder and a history of cardiomyopathy, poly-substance abuse, and alcohol abuse.

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(Id.)

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At step three, the ALJ found that plaintiff did not have an impairment or combination

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of impairments that met or medically equaled one of the impairments listed in the

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Commissioner’s Listing of Impairments. (AR 12) (citing 20 C.F.R., Part 404, Subpt. P,

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App. 1.)

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Next, after considering the entire record, the ALJ determined that plaintiff had the

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“residual functional capacity [(“RFC”)] to perform light work as defined in 20 CFR

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404.1567(b) and 416.967(b) except that he must avoid all unprotected heights and

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dangerous machinery.

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occasionally stoop and bend. [Plaintiff] is limited to non-complex tasks in a non-public

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setting.” (AR 13.) The ALJ stated that his determination was “supported by the totality of

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the medical evidence, objective findings, and the opinions of the individuals who have had

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the opportunity to assess the claimant and his abilities, as well as the subjective allegations

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of the [plaintiff].” (AR 19.)

[Plaintiff] can occasionally climb ramps and stairs, and can

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The ALJ then proceeded to step four of the sequential evaluation process. He found

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that plaintiff was unable to perform any of his past relevant work. (AR 20.) For the

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purposes of his step five determination, the ALJ accepted the testimony of a vocational

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expert (“VE”) that an individual with plaintiff’s vocation profile could perform jobs

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identified by the VE that exist in significant numbers in the national economy. (AR 20-

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21.)

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III.

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The sole issue in dispute in this case is whether, in determining plaintiff’s RFC, the

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SOLE ISSUE IN DISPUTE

ALJ properly rejected the opinion of plaintiff’s treating psychiatrist, Dr. Le.

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IV.

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Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to

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determine whether the Commissioner’s findings are supported by substantial evidence and

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whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846

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(9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a

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preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d

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842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th

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Cir. 1988). Substantial evidence is “such relevant evidence as a reasonable mind might

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accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401. This Court

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must review the record as a whole and consider adverse as well as supporting evidence.

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Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of

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more than one rational interpretation, the Commissioner’s decision must be upheld.

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Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

STANDARD OF REVIEW

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V.

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The law is well established in this Circuit that a treating physician’s opinions are

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entitled to special weight because a treating physician is employed to cure and has a greater

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opportunity to know and observe the patient as an individual. See McAllister v. Sullivan,

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888 F.2d 599, 602 (9th Cir. 1989). “The treating physician’s opinion is not, however,

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necessarily conclusive as to either a physical condition or the ultimate issue of disability.”

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Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating

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physician’s opinion depends on whether it is supported by sufficient medical data and is

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consistent with other evidence in the record.

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416.927(d)(2). If the treating physician’s opinion is uncontroverted by another doctor, it

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may be rejected only for “clear and convincing” reasons. See Lester v. Chater, 81 F.3d

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821, 830 (9th Cir. 1996); Baxter v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991). Where,

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as here, the treating physician’s opinion is controverted, it may be rejected only if the ALJ

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makes findings setting forth specific and legitimate reasons that are based on the substantial

DISCUSSION

See 20 C.F.R. §§ 404.1527(d)(2),

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evidence of record. See, e.g., Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“A

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treating physician’s opinion on disability, even if controverted, can be rejected only with

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specific and legitimate reasons supported by substantial evidence in the record.”);

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Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987).

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In assessing plaintiff’s RFC, the ALJ acknowledged that Dr. Le had opined on
December 22, 2014 that plaintiff was:
“[U]nable to meet competitive standards regarding his ability to remember
work-like procedures; to understand, remember, and carry out detailed
instructions[,] to maintain attention for two hours; to maintain regular
attendance and be punctual with customary, usually strict, tolerances, to
sustain an ordinary routine without special supervision; to work in
coordination with, or in proximity to, others without being distracted by them;
to make simple work-related decisions; to complete a normal workday and
workweek without interruptions from psychologically-based symptoms, and
to perform at a consistent pace without an unreasonable number and length of
rest periods; to accept instructions and respond appropriately to criticism from
supervisors; to get along with coworkers or peers without distracting them or
exhibiting behavioral extremes; to set realistic goals or make plans
independently of others; to deal with the stress of semi-skilled and skilled
work; pub; to maintain socially-appropriate behavior; neat; to travel in
unfamiliar places; or to use public transportation; to respond appropriately to
changes in the work setting; to deal with normal work stress; and to be aware
of normal hazards and take appropriate precautions. She also opined that
plaintiff has extreme difficulties in areas of social functioning, maintaining
concentration, persistence or pace, and one or two episodes of
decompensation, each of extended duration. She said that he is likely to miss
more than four days of work per month. She opined that alcohol and
substance abuse do not contribute to any of the [plaintiff’s] limitations.” (AR
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After detailing Dr. Le’s opinions, the ALJ stated:

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“This opinion is given little weight; it is not consistent with the medical
evidence of record, or the other expert opinions. Also, Dr. Le did not appear
to take [plaintiff’s] DDA [drug addiction and alcoholism] into account in
formulating her opinion.” (Id.)

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The Court will address each of these reasons in turn.

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The first reason given by the ALJ for rejecting Dr. Le’s opinion was that it was

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inconsistent with the medical evidence of record. However, since the ALJ did not

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specifically identify the evidence of record that supposedly undermined Dr. Le’s opinion,

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the Court finds that this vague reason is not sufficiently specific to constitute a legally

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sufficient reason for according little weight to Dr. Le’s opinion. See Embrey v. Bowen,

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849 F.2d 418, 422 (9th Cir. 1988) (“To say that medical opinions are not supported by

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sufficient objective findings or are contrary to the preponderant conclusions mandated by

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the objective findings does not achieve the level of specificity our prior cases have

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required.”); Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (same); see also Orn

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v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (“The ALJ must do more than offer his

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conclusions. He must set forth his own interpretations and explain why they, rather than

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the doctors’, are correct.”) (citing Embrey, 849 F.2d at 421-22); Regennitter v.

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Commissioner of Social Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999) (“[C]onclusory

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reasons will not justify an ALJ’s rejection of a medical opinion.”).2

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The second reason given by the ALJ for rejecting Dr. Le’s opinion was that it was

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not consistent with the other expert opinions. However, any inconsistency between Dr.

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Le’s opinion and the other physicians’ opinions was merely determinative of the standard

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to be applied to the ALJ’s proffered reasons for not crediting the opinion of Dr. Le; it was

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not a legally sufficient reason in itself. See Lester, 81 F.3d at 830 (in event of conflict in

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the medical opinion evidence, an ALJ still must provide legally sufficient reasons to reject

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a treating or examining physician’s opinion); see also Widmark v. Barnhart, 454 F.3d 1063,

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The Commissioner contends that the inconsistency the ALJ referenced lies within Dr.
Le’s December 22, 2014 “Mental Impairment Questionnaire (RFC & Listings)” (AR 34045) between her conclusion that plaintiff was extremely limited in his functioning and
plaintiff’s GAF score of 55, indicating only moderate limitations. (ECF 21-1 at 4-5.)
However, the Court is “constrained to review [only] the reasons the ALJ asserts.” Connett
v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.
2007) (“We review only the reasons provided by the ALJ in the disability determination
and may not affirm the ALJ on a ground upon which he did not rely.”).

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1066-67 n.2 (9th Cir. 2006) (existence of a conflict among the medical opinions by itself

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cannot constitute substantial evidence for rejecting a treating physician’s opinion).

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The final reason given by the ALJ for rejecting Dr. Le’s opinion was that she did not

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take into account plaintiff’s DAA history. However, the Mental Impairment Questionnaire

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form completed by Dr. Le belies this third reason. The form specifically asked, “If your

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patient’s impairments include alcohol or substance abuse, do alcohol or substance abuse

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contribute to any of your patient’s limitations set forth above?” (AR 345.) Dr. Le checked

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off the “No” box. (Id.) The form only asked for further explanation if the “Yes” box was

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checked. (Id.) The Court finds therefore that the ALJ’s third “reason” for rejecting Dr.

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Le’s opinion also did not qualify as a specific and legitimate reason for doing so.

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VI.

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The law is well established that the decision whether to remand for further

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proceedings or simply to award benefits is within the discretion of the Court. See, e.g.,

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Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599,

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603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is

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warranted where additional administrative proceedings could remedy defects in the

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decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d

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at 635. Remand for the payment of benefits is appropriate where no useful purpose would

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be served by further administrative proceedings, Kornock v. Harris, 648 F.2d 525, 527 (9th

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Cir. 1980); where the record has been fully developed, Hoffman v. Heckler, 785 F.2d 1423,

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1425 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of benefits,

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Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985).

CONCLUSION AND RECOMMENDATION

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Here, the Court has concluded that this is not an instance where no useful purpose

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would be served by further administrative proceedings; rather, additional administrative

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proceedings still could remedy the defects in the ALJ’s decision. See Marsh v. Colvin, 792

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F.3d 1170, 1173 (9th Cir. 2015) (remanding for further administrative proceedings where

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ALJ failed to properly reject a treating physician’s opinion).
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For the foregoing reasons, this Court RECOMMENDS that plaintiff’s motion for

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summary judgment be GRANTED, that the Commissioner’s cross-motion for summary

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judgment be DENIED, and that Judgment be entered reversing the decision of the

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Commissioner and remanding this matter for further administrative proceedings.

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Any party having objections to the Court’s proposed findings and recommendations

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shall serve and file specific written objections within 14 days after being served with a

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copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections

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should be captioned “Objections to Report and Recommendation.” A party may respond

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to the other party’s objections within 14 days after being served with a copy of the

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objections. See Fed. R. Civ. P. 72(b)(2). See id.

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Dated: April 17, 2018
_________________________
ROBERT N. BLOCK
UNITED STATES MAGISTRATE JUDGE

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