Carranza-Villalobos v. Berryhill

Filing 20

REPORT AND RECOMMENDATION re 14 MOTION for Summary Judgment filed by Sergio Martin Carranza-Villalobos, 15 Cross MOTION for Summary Judgment filed by Nancy A. Berryhill Objections to R&R due by 8/1/2018 Replies due by 8/8/2018. Signed by Magistrate Judge Robert N. Block on 7/18/2018.(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17-cv-02273-BEN (RNB)

SERGIO MARTIN CARRANZAVILLALOBOS,

REPORT AND
RECOMMENDATION REGARDING
CROSS-MOTIONS FOR SUMMARY
JUDGMENT

Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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(ECF Nos. 14, 15)

Defendant.

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This Report and Recommendation is submitted to the Honorable Roger T. Benitez,

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

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72.1(c) of the United States District Court for the Southern District of California.

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On November 7, 2017, plaintiff Sergio Martin Carranza-Villalobos filed a

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

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Commissioner of Social Security denying his application for Supplemental Security

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Income (“SSI”). (ECF No. 1.)

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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 cross1
17-cv-02273-BEN (RNB)

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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 pursuant to sentence four of 42 U.S.C. § 405(g).1

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PROCEDURAL BACKGROUND

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On November 1, 2013, plaintiff filed an application for SSI.

(Certified

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Administrative Record [“AR”]) 345-65.) In his application, plaintiff alleged onset of

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disability on October 21, 2006. (AR 366.) Plaintiff stated that he was unable to work due

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to schizoaffective psychosis. (AR 345, 256.) The application was denied initially and

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upon reconsideration. (AR 255-67, 268-81, 283-86, 292-97.)

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On October 7, 2014, plaintiff requested an administrative hearing. (AR 298-300.)

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A hearing was held before an administrative law judge (“ALJ”) on April 21, 2016. (AR

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215-54.) Plaintiff testified at the hearing, along with a Vocational Expert (“VE”), Gloria

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J. Lasoff, M.A. (AR 215-54.) Plaintiff was represented at the administrative hearing. (AR

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215-54.) The ALJ issued a decision on June 8, 2016, finding that plaintiff was not disabled.

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(AR 31-49.) Thereafter, plaintiff requested a review of the decision by the Appeals

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Council. (AR 343-44.) The ALJ’s decision became the final decision of the Commissioner

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on September 15, 2017, when the Appeals Council denied plaintiff’s request for review.

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(AR 1-7.) This timely civil action followed.

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In connection with plaintiff’s motion for summary judgment, plaintiff filed a
request for judicial notice of various sections of the Dictionary of Occupational Titles
(DOT), the Occupational Outlet Handbook (OOH), and the O*NET OnLine (O*NET).
(ECF No. 14-2.) The Court GRANTS the request, but only as to the information contained
in those sources. See Philbrook v. Berryhill, 2018 WL 565262, at *1 n.2 (C.D. Cal. Jan.
24, 2018); Walker v. Berryhill, 2017 WL 1097171, at *3 (C.D. Cal. Mar. 23, 2017).
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SUMMARY OF THE ALJ’S FINDINGS

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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 November 1, 2013.2 (AR 36.)

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

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schizoaffective disorder; an affective disorder; borderline intellectual functioning; and an

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anxiety disorder. (AR 36.)

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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 the severity of one of the impairments listed

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in the Commissioner’s Listing of Impairments. (AR 37-38.)

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Next, the ALJ found that plaintiff had the residual functional capacity (“RFC”) to

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perform a full range of work at all exertional levels but with the following non-exertional

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limitations: plaintiff is limited to understanding, remembering and carrying out simple,

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routine, repetitive tasks, with the need for standard work breaks every two hours, to no

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interaction with the general public, and to occasional work-related, non-personal, non-

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social interactions with co-workers and supervisors involving no more than a brief

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exchange of information or hand-off of product. (AR 38-43.)

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At step four, the ALJ determined that plaintiff had no past relevant work. (AR 43.)

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The ALJ classified plaintiff as a younger individual on the date the application was filed,

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and categorized him as having a limited education and able to communicate in English.

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(AR 43.)

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The ALJ then proceeded to step five of the sequential evaluation process. Based on

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the VE’s testimony that a hypothetical person with plaintiff’s vocational profile could

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perform the requirements of occupations that existed in significant numbers in the national

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SSI is not payable prior to the month following the month in which the
application is filed. See 20 C.F.R. § 416.335.
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economy (i.e., dishwasher, cleaner, assembler), the ALJ found that plaintiff had not been

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disabled since November 1, 2013. (AR 43-44.)

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DISPUTED ISSUES
As reflected in plaintiff’s motion for summary judgment, the disputed issues that
plaintiff is raising as the grounds for reversal and remand are as follows:
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Whether the ALJ improperly rejected the opinion of Dr. Arevalo, plaintiff’s

treating psychiatrist. (ECF No. 14-1 at 19-21.)
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Whether the ALJ improperly rejected the opinions of the State Agency

Physicians. (ECF No. 14-1 at 13-14.)
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Whether the ALJ erred in accepting the VE’s testimony. (ECF No. 14-1 at

14-18.)
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Whether the ALJ posed a complete hypothetical question to the VE. (ECF

No. 14-1 at 12.) [Withdrawn by plaintiff (ECF No. 17 at 2).]

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STANDARD OF REVIEW

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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 (1971); Desrosiers v. Sec’y of

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Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is

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“such relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole

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and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-

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30 (9th Cir. 1986). Where evidence is of more than one rational interpretation, the

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Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th

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Cir. 1984).
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DISCUSSION
A.

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Reversal is not warranted based on the ALJ’s alleged improper rejection
of the opinions of the State Agency Physicians.

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The Commissioner’s Regulations provide that, although ALJs “are not bound by any

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findings made by [nonexamining] State agency medical or psychological consultants, or

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other program physicians or psychologists,” ALJs must still “consider [their] findings and

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other opinions . . . as opinion evidence, except for the ultimate determination about whether

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[a claimant is] disabled,” because such specialists are regarded as “highly qualified . . .

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experts in Social Security disability evaluation.” See 20 C.F.R. §§ 404.1527(f)(2)(i),

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416.927(f)(2)(i). The Regulations further provide that “[u]nless a treating source’s opinion

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is given controlling weight, the [ALJ] must explain in the decision the weight given to the

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opinions of a State agency medical or psychological consultant or other program physician,

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psychologist, or other medical specialist.”

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416.927(f)(2) (ii); see also SSR 96-6p (“Findings . . . made by State agency medical and

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psychological consultants . . . regarding the nature and severity of an individual’s

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impairment(s) must be treated as expert opinion evidence of nonexamining sources,” and

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ALJs “may not ignore these opinions and must explain the weight given to these opinions

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in their decisions.”).1

See 20 C.F.R. §§ 404.1527(f)(2)(ii),

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Here, on initial review, Jon Etienne Mourot, Ph.D. conducted a mental RFC

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assessment of plaintiff. (AR 263-65.) As part of that assessment, Dr. Mourot opined that

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plaintiff “retains the capacity to do simple repetitive 1-2 step tasks with limited public or

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interpersonal contact. UNSKILLED.” (AR 265.) He also rated plaintiff’s ability to carry

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out detailed instructions as “[n]ot significantly limited.” (AR 264.) On reconsideration,

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K. Loomis MD opined the same. (AR 277-78.) In determining plaintiff’s RFC, the ALJ

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Social Security Rulings are binding on ALJs. See Terry v. Sullivan, 903 F.2d
1273, 1275 n.1 (9th Cir. 1990).
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considered the opinions of Dr. Mourot and Dr. Loomis and found that their opinions were

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consistent with the medical evidence as a whole, and therefore “granted great weight.” (AR

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42-43.) He then determined that plaintiff’s RFC included a limitation to “understanding,

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remembering and carrying out simple, routine, repetitive tasks.” (AR 38.)

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Because the ALJ gave “great weight” to the opinions of Dr. Mourot and Dr. Loomis,

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the ALJ was required either (1) to include the limitations in plaintiff’s RFC, or (2) to

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explain why he did not. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)

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(requiring the ALJ to account for all relevant evidence in assessing the RFC); see also

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Flores v. Berryhill, 2018 WL 2439579, at *1 (9th Cir. 2018) (finding the ALJ erred when

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it did not adequately take this step). As Dr. Mourot and Dr. Loomis both opined that

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plaintiff was not significantly limited in his ability to carry out detailed instructions, the

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Court finds that the ALJ properly included the State Agency Physicians’ limitations in

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plaintiff’s RFC, when he added a limitation to “simple, routine, repetitive tasks.” See 20

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C.F.R. § 416.945(a) (a claimant’s RFC “is the most [he] can still do despite [his]

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limitations”); Dominguez v. Colvin, 808 F.3d 403, 405 (9th Cir. 2016) (same). As such,

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reversal is not warranted based on this claim.

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B.

The ALJ improperly rejected the opinion of plaintiff’s treating
psychiatrist, Dr. Arevalo.

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Dr. Arevalo, plaintiff’s treating psychiatrist, completed a Mental Impairment

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Questionnaire, dated May 6, 2014. (AR 480-85.) Dr. Arevalo represented that he had been

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providing weekly mental health services to plaintiff since March 2012. (AR 480.) Dr.

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Arevalo diagnosed plaintiff with a schizoaffective disorder, and noted that plaintiff had

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hallucinations, was depressed/had angry moods, and had associated symptoms. Plaintiff’s

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associated signs and symptoms included: anhedonia or pervasive loss of interest in almost

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all activities; decreased energy; blunt, flat or inappropriate affect; feelings of guilt or

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worthlessness; generalized persistent anxiety; mood disturbance; difficulty thinking or

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concentrating; change in personality; apprehensive expectation; recurrent obsessions or
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compulsions; emotional withdrawal or isolation; passive thoughts of suicide; emotional

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lability; hallucinations or delusion; vigilance; and memory impairment. (AR 480-81.)

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Dr. Arevalo opined that plaintiff was seriously limited, but not precluded in the

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following: working in coordination with or proximity to others without being unduly

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distracted; maintaining attention for a two hour segment; completing a normal workday

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and workweek without interruptions from psychologically based symptoms; asking simple

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questions or requesting appropriate assistance; responding appropriately to changes in a

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routine work setting; understanding and remembering detailed instructions; carrying out

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detailed instructions; and interacting appropriately with the general public. Dr. Arevalo

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also opined that plaintiff would be unable to meet competitive standards in dealing with

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normal work stress, and the stress of semiskilled and skilled work. (AR 482-83.) Dr.

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Arevalo further opined that plaintiff would have marked difficulties in social functioning

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and moderate difficulties in maintaining concentration. (AR 484.)

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In addition, Dr. Arevalo noted that plaintiff had one or two episodes of

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decompensation within a 12 month period, each of at least two weeks duration, as well as

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a medically documented history of a chronic affective disorder of at least two years’

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duration that had caused more than a minimal limitation of ability to do any basic work

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activity with symptoms or signs currently attenuated by medication or psychosocial

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support. (AR 484.) Dr. Arevalo further noted that plaintiff’s was currently taking

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Risperdal, which caused lethargy and fatigue, and opined that he was not a malingerer. Dr.

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Arevalo determined that plaintiff’s prognosis was guarded, and opined that he anticipated

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plaintiff would be absent from work more than four days per month for his impairments or

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treatment.3 (AR 485.)

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

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

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The Court notes that Dr. Arevalo saw plaintiff approximately four times per
month as he was providing weekly mental health services to plaintiff. (See AR 485.)
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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 physicians’ opinions are controverted, it may be rejected only if the

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

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

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1998) (“A treating physician’s opinion on disability, even if controverted, can be rejected

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only with 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).

See 20 C.F.R. §§ 404.1527(d)(2),

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Here, the ALJ determined that Dr. Arevalo’s opinion was only entitled to “minimal

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weight” because “the assessment by Dr. Arevalo [was] not consistent with or supported by

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the evidence as a whole, including objective signs and findings such as those contained in

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the March 19, 2014, consultative psychiatric evaluation by Dr. Nicholson, as well as the

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mental status examinations.” (AR 41.)4 In support of this reason, the ALJ cited five

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exhibits comprised of 204 pages of examination records. (AR 41.)

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To the extent one of the ALJ’s reasons cited by the Commissioner (i.e., Dr.
Arevalo’s opinion was inconsistent with plaintiff’s own testimony) was not a reason
actually cited by the ALJ, the Court cannot consider it. See Ceguerra v. Secretary of Health
& Human Services, 933 F.2d 735, 738 (9th Cir. 1991) (“A reviewing court can evaluate an
agency’s decision only on the grounds articulated by the agency.”); see also Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).
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To the extent Dr. Arevalo’s opinion was contradicted by or inconsistent with the

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opinions of Dr. Nicholson and/or other physicians of record, any such inconsistency merely

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was determinative of the standard to be applied to the ALJ’s proffered reasons for not

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crediting Dr. Arevalo’s opinion; it is not a legally sufficient reason in itself. See Lester, 81

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F.3d at 830 (in the event of conflict in the medical opinion evidence, an ALJ still must

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provide legally sufficient reasons to reject a treating or examining physician’s opinion);

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see also Widmark v. Barnhart, 454 F.3d 1063, 1066-67 n.2 (9th Cir. 2006) (existence of a

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conflict among the medical opinions by itself cannot constitute substantial evidence for

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rejecting a treating physician’s opinion).

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To the extent the ALJ was saying that Dr. Arevalo’s assessment was not consistent

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with or supported by objective evidence of record contained in other mental status

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examinations, it was incumbent upon him to specify in what respects. (See AR 41.)

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Although the ALJ summarized the evaluations of Dr. Nicholson and the cited mental status

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examinations, he did not identify any inconsistencies or explain why Dr. Arevalo’s opinion

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was entitled to less weight and should be rejected. A bare assertion by an ALJ that the

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objective medical evidence does not support a physician’s opinion fails to constitute a

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specific and legitimate reason. See Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir.

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1988); Ramirez v. Berryhill, 2018 WL 3301249, at *2 (9th Cir. July 5, 2018). Instead, the

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ALJ must “set[] out a detailed and thorough summary of the facts and conflicting clinical

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evidence, stat[e] his interpretation thereof, and mak[e] findings.” Reddick v. Chater, 157

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F.3d 715, 725 (9th Cir. 1998); see also Ramirez, 2018 WL 3301249, at *2. Moreover, it is

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not the Court’s function to comb the record to find specific conflicts when the ALJ makes

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this kind of general statement. See Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir.

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2015). Here, the record on which the ALJ relies consists of 204 pages of examination

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records. Accordingly, the Court finds that the ALJ did not provide a legally sufficient

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reason for rejecting Dr. Arevalo’s opinion.

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C.

The Court’s conclusion that the ALJ failed to properly reject Dr.

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Arevalo’s opinion renders it unnecessary to address the other issue raised

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by plaintiff.

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As noted above, Dr. Arevalo opined, inter alia, that plaintiff could be anticipated to

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be absent from work more than four days per month as a result of his impairment or for

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treatment. (AR 485.) The VE testified that if a hypothetical individual with plaintiff’s

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limitations were to typically miss two days of work per month, there would be no jobs

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available. (See AR 252, 485.) An error is harmless only if it is “inconsequential to the

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ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.

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2012) (citation and internal quotation marks omitted). Here, based on the VE’s testimony,

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the error cannot be harmless. Since it will be necessary for the ALJ to reconsider plaintiff’s

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mental RFC determination, there is no need for the Court to address the remaining step five

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issue raised by plaintiff.

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D.

The Court declines plaintiff’s request to credit Dr. Arevalo’s opinion as
true for purposes of the further proceedings on remand.

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Plaintiff contends that the Court should credit Dr. Arevalo’s opinion as true for

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purposes of the further proceedings on remand. (See ECF No. 14-1 at 21, citing Vasquez

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v. Astrue, 572 F.3d 586, 594 (9th Cir. 2009).) However, as plaintiff recognizes, the Ninth

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Circuit treated the “credit as true” rule as discretionary in Vasquez. (See id.) The Court is

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mindful of Ninth Circuit authority for the proposition that, where an ALJ failed to properly

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consider either subjective symptom testimony or medical opinion evidence, it is sometimes

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appropriate to credit the evidence as true and remand the case for calculation and award of

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benefits. See, e.g., Garrison v. Colvin, 759 F.3d 995, 1019-21 (9th Cir. 2014). However,

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in Ghanim v. Colvin, 763 F.3d 1154 (9th Cir. 2014), a case decided after Garrison, another

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Ninth Circuit panel did not apply or even acknowledge the “credit as true” rule where

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substantial evidence did not support an ALJ’s rejection of treating medical opinions and

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his adverse credibility determination; instead, the panel simply remanded the case for
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further administrative proceedings. Id. at 1167. And, in Marsh v. Colvin, 792 F.2d 1170

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(9th Cir. 2015), the panel did not apply or even acknowledge the “credit as true” rule where

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the ALJ had failed to even mention a treating source’s opinion that the claimant was “pretty

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much nonfunctional”; instead, the panel simply remanded the case to afford the ALJ the

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opportunity to comment on the doctor’s opinions. Id. at 1173. The Court here has decided

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that the ALJ should be afforded the opportunity to specify the respects in which Dr.

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Arevalo’s assessment is not consistent with or supported by objective evidence of record

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contained in other mental status examinations.

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CONCLUSION AND RECOMMENDATION

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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 pursuant

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to sentence four of 42 U.S.C. § 405(g).

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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: July 18, 2018

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_________________________
ROBERT N. BLOCK
UNITED STATES MAGISTRATE JUDGE

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