Parvon v. Colvin
Filing
33
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION AND REMANDING CASE re 21 - Signed by JUDGE ALAN C KAY on 3/11/2016. "For the foregoing reasons, the Court in part and DENIES in part Plaintiff's Motion for Summary Adjudication, and thereby AFFIRMS in part and REVERSES in part the Commissioner's decision denying Social Security disability benefits to Plaintiff. Specifically, the Court finds that 1) the ALJ's decision to disregard the medical opinions of Dr. Ahmed, Dr. Santarpia, and Dr. Echevarria did not constitute legal error; 2) the ALJ's decision to implicitly disregard the medical opinion of Dr. Tzetzo consti tuted reversible legal error; 3) the ALJ did not commit legal error in conducting his residual functional capacity assessment or crafting his VE hypothetical, neither of which included certain limitations the ALJ identified in steps two a nd three of the sequential process for determining whether a claimant is disabled; and 4) the Appeals Council was required to consider the VA decision, which became part of the overall administrative record when Plaintiff submitted it as n ew evidence and the Appeals Council denied his request for review. Accordingly, the Court hereby REMANDS this case to the ALJ for further administrative proceedings in order to determine, in conjunction with considering the entire reco rd, the effect of Dr. Tzetzo's medical opinion and the VA decision on Plaintiff's disability assessment." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notific ations received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
___________________________________
)
AL PARVON,
)
)
Plaintiff,
)
)
v.
) Civ. No. 15-00110 ACK-BMK
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social
)
Security,
)
)
Defendant.
)
___________________________________)
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION
FOR SUMMARY ADJUDICATION AND REMANDING CASE
For the reasons set forth below, the Court GRANTS in
part and DENIES in part Plaintiff’s Motion for Summary
Adjudication, ECF No. 21, and thereby AFFIRMS in part and
REVERSES in part the Commissioner of Social Security’s
(“Commissioner”) decision denying Social Security disability
benefits to Plaintiff Al Parvon (“Parvon” or “Plaintiff”),
Administrative Record (“AR”) 15-24.
The Court hereby REMANDS
this case to the Administrative Law Judge (“ALJ”) for further
administrative proceedings consistent with this Order.
BACKGROUND
On June 19, 2012, Plaintiff protectively filed an
application for a period of disability and disability insurance
benefits pursuant to Title II of the Social Security Act.
AR 15, 61, 130-32.
That same day, he also protectively filed an
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application for supplemental security income pursuant to Title
XVI of the Social Security Act.
AR 15, 60, 133-38.
In his
applications Plaintiff alleged he was disabled as of June 1,
2011.
AR 15, 130-38.
alleged disability.
He was 56 years old at the onset of his
AR 151; Pl.’s Br. in Supp. of Mot. for
Summ. Adjudication (“Pl.’s Br.”) at 1.
Plaintiff’s claims were initially denied on September
19, 2012.
AR 15, 60-61, 71-82.
He thereafter requested a
hearing before an ALJ, which took place on October 9, 2013 in
Buffalo, New York.
AR 15, 29-59, 83-84.
At the hearing,
Plaintiff requested a closed period of disability from June 1,
2011 to January 14, 2013, to which the ALJ limited his review.
AR 15, 36.
In a written opinion dated December 10, 2013, the ALJ
concluded that Plaintiff had not been under a disability within
the meaning of the Social Security Act from June 1, 2011 through
the date of the decision.
AR 15.
His decision was based on a
determination that Plaintiff was capable of performing his past
relevant work as a mobile home sales representative, computer
sales representative, or office machines sales representative.
AR 23.
The ALJ therefore denied Plaintiff’s applications for
disability insurance benefits and supplemental security income.
AR 24.
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On January 24, 2014, Plaintiff filed with the Social
Security Administration’s (“SSA”) Appeals Council a request for
review of the ALJ’s decision.
AR 10-11.
He submitted to the
Appeals Council a decision by the Department of Veteran’s
Affairs (“VA”), dated September 4, 2013, finding Plaintiff
disabled as of April 10, 2012.
AR 199-205.
On February 11,
2015, the Appeals Council denied Plaintiff’s request for review,
finding that the ALJ’s determination was not contrary to the
weight of the evidence of record.
AR 1-7.
Additionally, the
Appeals Council characterized the VA decision as “new
information . . . about a later time,” stating that the decision
was dated September 12, 2014, after the ALJ had rendered a
decision on December 10, 2013.1
AR 2.
The Appeals Council also
noted that the VA “has a different evaluation process and
utilizes different standards to determine disability.”
AR 2.
Thus, the ALJ’s decision became the Commissioner’s final
decision.
AR 1.
On March 31, 2015, Plaintiff filed a Complaint with
this Court seeking judicial review of the Commissioner’s
decision pursuant to 42 U.S.C. § 405(g) and 42 U.S.C.
§ 1383(c)(3).
Compl. – Social Security Appeal at 1.
1
Plaintiff
As Plaintiff accurately points out, the Appeals Council
incorrectly stated that the VA decision was dated September 12,
2014. Pl.’s Br. at 6 n.3. The record indicates that the VA
decision was actually dated September 4, 2013, prior to when the
ALJ issued his decision. AR 199.
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then filed a Motion for Summary Adjudication on January 13,
2016.
ECF No. 21-22.
In his accompanying brief, Plaintiff
alleges that the SSA committed legal error when 1) the ALJ
submitted his own lay judgment for that of the medical experts
on record; 2) the ALJ failed to accord appropriate deference to
the opinion of Plaintiff’s treating psychiatrist; 3) the ALJ’s
residual functional capacity finding and vocational expert
(“VE”) hypothetical failed to include the appropriate mental
limitations; and 4) the Appeals Council failed to consider and
address the VA’s September 2013 disability finding.
Pl.’s Br.
at 7-8.
Defendant Commissioner of Social Security Carolyn W.
Colvin (“Defendant”) filed an Answering Brief on February 13,
2016.
Def.’s Answering Br. (“Def.’s Br.”), ECF No. 25.
On
February 22, 2016, Plaintiff filed a Reply in support of his
Motion.
Pl.’s Reply Br. in Further Supp. of His Mot. for Summ.
Adjudication (“Pl.’s Reply”), ECF No. 26.
The Court held a hearing on March 7 regarding the
instant Motion, in which counsel for both parties appeared
telephonically.
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STANDARD
I.
Jurisdiction and Standard of Review
A district court has jurisdiction pursuant to 42
U.S.C. § 405(g) to review final decisions of the Commissioner of
Social Security.2
A final decision by the Commissioner denying Social
Security disability benefits will not be disturbed by the
reviewing district court if it is free of legal error and
supported by substantial evidence.
See 42 U.S.C. § 405(g);
Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005)
(reviewing a district court’s decision de novo).
In determining
the existence of substantial evidence, the whole administrative
record must be considered, weighing the evidence that both
supports and detracts from the Commissioner’s conclusion.
See
Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).
“Substantial evidence means more than a scintilla but
less than a preponderance.”
Smolen v. Chater, 80 F.3d 1273,
1279 (9th Cir. 1996) (citations omitted).
It is also “such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”
Id.
Finally, “[w]here the evidence
may reasonably support more than one interpretation, [the court]
2
42 U.S.C. § 1383(c)(3) incorporates the judicial review
standards of 42 U.S.C. § 405(g), making them applicable to
claims for supplemental security income.
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may not substitute [its] judgment for that of the Commissioner.”
Verduzco, 188 F.3d at 1089.
II.
Summary Adjudication
The standard for summary adjudication is the same as
the standard for summary judgment.
Rexel, Inc. v. Rexel Int’l
Trading Corp., 540 F. Supp. 2d 1154, 1160 (C.D. Cal. 2008); see
also Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001)
(stating that the court’s review of a motion for summary
adjudication is governed by Federal Rule of Civil Procedure
56(c)).
Summary judgment, or summary adjudication, is proper
where there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.
P. 56(a).
Fed. R. Civ.
Rule 56(a) mandates summary judgment “against a party
who fails to make a showing sufficient to establish the
existence of an element essential to the party’s case, and on
which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also
Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th
Cir. 1999).
“A party seeking summary judgment bears the initial
burden of informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.”
Soremekun v. Thrifty Payless, Inc., 509 F.3d
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978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see
also Jespersen v. Harrah’s Operating Co., 392 F.3d 1076, 1079
(9th Cir. 2004).
“When the moving party has carried its burden
under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts
[and] come forward with specific facts showing that there is a
genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 586–87 (1986) (citation and internal
quotation marks omitted); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986) (stating that a party cannot
“rest upon the mere allegations or denials of his pleading” in
opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient
evidentiary basis on which a reasonable fact finder could find
for the nonmoving party, and a dispute is ‘material’ only if it
could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248).
When considering the evidence on a
motion for summary judgment, the court must draw all reasonable
inferences on behalf of the nonmoving party.
Matsushita Elec.
Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating
that “the evidence of [the nonmovant] is to be believed, and all
justifiable inferences are to be drawn in his favor”).
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DISCUSSION
“To establish a claimant’s eligibility for disability
benefits under the Social Security Act, it must be shown that:
(a) the claimant suffers from a medically determinable physical
or mental impairment that can be expected to result in death or
that has lasted or can be expected to last for a continuous
period of not less than twelve months; and (b) the impairment
renders the claimant incapable of performing the work that the
claimant previously performed and incapable of performing any
other substantial gainful employment that exists in the national
economy.”
42 U.S.C. § 423(d)(2)(A); Tackett v. Apfel, 180 F.3d
1094, 1098 (9th Cir. 1999).
A claimant must satisfy both
requirements in order to qualify as “disabled” under the Social
Security Act.
I.
Tackett, 180 F.3d at 1098.
The SSA’s Five-Step Process for Determining
Disability
The Social Security regulations set forth a five-step
sequential process for determining whether a claimant is
disabled.
Ukolov, 420 F.3d at 1003; see 20 C.F.R. § 404.1520.
“If a claimant is found to be ‘disabled’ or ‘not disabled’ at
any step in the sequence, there is no need to consider
subsequent steps.”
in original).
Ukolov, 420 F.3d at 1003 (citations omitted
The claimant bears the burden of proof as to
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steps one through four, whereas the burden shifts to the SSA for
step five.
Tackett, 180 F.3d at 1098.
At step one the ALJ will consider a claimant’s work
activity, if any.
20 C.F.R. § 404.1520(a)(4)(i).
If the ALJ
finds the claimant is engaged in substantial gainful activity he
will determine that the claimant is not disabled, regardless of
the claimant’s medical condition, age, education, or work
experience.
20 C.F.R. § 404.1520(b).
Substantial gainful
activity is work that is defined as both substantial – i.e. work
activity involving significant physical or mental activities –
and gainful – i.e. work activity done for pay or profit.
C.F.R. § 404.1572.
20
If the ALJ finds that the claimant is not
engaged in substantial gainful activity, the analysis proceeds
to step two.
Tackett, 180 F.3d at 1098.
Step two requires the ALJ to consider the medical
severity of the claimant’s impairments.
404.1520(a)(4)(ii).
20 C.F.R. §
Only if the claimant has an impairment or
combination of impairments that “significantly limits [his]
physical or mental ability to do basic work activities” will the
analysis proceed to step three.
20 C.F.R. § 404.1520(c).
If
not, the ALJ will find the claimant is not disabled and the
analysis stops.
20 C.F.R. § 404.1520(a)(4)(ii).
The severity of the claimant’s impairments is also
considered at step three.
20 C.F.R. § 404.1520(a)(4)(iii).
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Here, the ALJ will determine whether claimant’s impairments meet
or medically equal the criteria of an impairment specifically
described in the regulations.
Subpart P, App. 1.
Id.; see also 20 C.F.R. Part 404,
If the impairments do meet or equal these
criteria, the claimant is deemed disabled and the analysis ends.
20 C.F.R. § 404.1520(a)(4)(iii).
to step four.
If not, the analysis proceeds
20 C.F.R. § 404.1520(e).
Step four first requires the ALJ to determine the
claimant’s residual functional capacity.
Id.
Residual
functional capacity is defined as the most the claimant can
still do in a work setting despite his physical and mental
limitations.
20 C.F.R. § 404.1545(a)(1).
In assessing a
claimant’s residual functional capacity, the ALJ will consider
all of the relevant evidence in the claimant’s case record
regarding both severe and non-severe impairments.
404.1545.
20 C.F.R. §
This assessment is then used to determine whether the
claimant can still perform his past relevant work.
404.1520(e).
20 C.F.R. §
Past relevant work is defined as “work that [the
claimant has] done within the past 15 years, that was
substantial gainful activity, and that lasted long enough for
[the claimant] to learn to do it.”
20 C.F.R. § 404.1560(b)(1).
The ALJ will find that the claimant is not disabled if he can
still perform his past relevant work, at which point the
analysis will end.
Otherwise, the ALJ moves on to step five.
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In the fifth and final step, the ALJ will once again
consider the claimant’s residual functional capacity, as well as
his age, education, and work experience, in order to determine
whether the claimant can perform other work.
404.1520(a)(4)(v).
20 C.F.R. §
Here, the Commissioner is responsible for
providing “evidence that demonstrates that other work exists in
significant numbers in the national economy that [the claimant]
can do.”
20 C.F.R. § 404.1560(c)(2).
If the claimant is unable
to perform other work, he is deemed disabled; if he can make an
adjustment to other available work, he is considered not
disabled.
20 C.F.R. § 404.1520(g)(1).
II.
ALJ’s Analysis
a. Steps One and Two
The ALJ found that Plaintiff had not engaged in
substantial gainful activity during the period from June 1, 2011
through January 14, 2013.
AR 17.
He next found that
Plaintiff’s alcohol abuse/dependence, depression, and hernia
constituted severe impairments because they “significantly limit
the [Plaintiff’s] ability to perform basic work activities.”
17-18.
AR
The ALJ also found that Plaintiff’s non-severe
impairments included low back pain, sleep apnea, hypertension, a
transient ischemic attack in 2010, right ear hearing loss,
obesity, and a renal cyst.
AR 18.
findings.
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Neither party contests these
b. Steps Three and Four
Moving to step three, the ALJ next found that
Plaintiff did not have an impairment or a combination of
impairments that met or medically equaled the severity of an
impairment listed in the Social Security regulations.
AR 18-19.
In so concluding, the ALJ found Plaintiff did not have
impairments resulting in two or more of the following “paragraph
B” criteria:
“marked restriction of activities of daily living;
marked difficulties in maintaining social functioning; marked
difficulties in maintaining concentration, persistence, or pace;
or repeated episodes of decompensation, each of extended
duration.”
AR 18; see also 20 C.F.R. Part 404, Subpart P,
Appendix 1 § 12.02(B).
The ALJ defined a “marked” limitation as
“more than moderate but less than extreme,” and “repeated
episodes of decompensation, each of extended duration” as three
episodes within one year, each lasting at least two weeks.
AR
18; see also 20 C.F.R. Part 404, Subpart P, Appendix 1
§ 12.00(C).
Measuring Plaintiff’s impairments against the
“paragraph C” criteria in the regulations, the ALJ also found
“no evidence of repeated episodes of decompensation of extended
duration, a residual disease process that has resulted in such
marginal adjustment that even a minimal increase in mental
demands or change in the environment would be predicted to cause
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the individual to decompensate, or current history of one or
more years’ inability to function outside a highly supportive
living arrangement with an indication of continued need for such
an arrangement.”
AR 19; see also 20 C.F.R. Part 404, Subpart P,
Appendix 1 § 12.02(C).
The ALJ then proceeded to assess Plaintiff’s residual
functional capacity for purposes of step four.
AR 19-23.
He
found that Plaintiff was capable of performing light work with
some limitations, and that Plaintiff had “occasional limitations
in the ability to understand, remember and carry out detailed
instructions (defined as mild limitations) and occasional
limitations in the ability to make decisions.”
AR 19.
Plaintiff does not dispute the ALJ’s findings
regarding his physical limitations, but argues that in assessing
Plaintiff’s mental limitations, the ALJ improperly substituted
his own lay judgment for that of the medical experts; failed to
accord appropriate deference to Plaintiff’s treating
psychiatrist; and failed to accommodate in his residual
functional capacity assessment and VE hypothetical the severe
mental limitation he found at step two.
Pl.’s Br. at 7-8.
In assessing whether or not a claimant is disabled,
the ALJ must “develop the record and interpret the medical
evidence,” considering the “combined effect” of all of
claimant’s impairments, regardless of whether any one
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impairment, considered alone, would be of sufficient severity.
Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).
However, the ALJ is not obligated to “discuss every piece of
evidence.”
Id.
Furthermore, “[i]t is clear that it is the
responsibility of the ALJ, not the claimant’s physician, to
determine residual functional capacity.”
Vertigan v. Halter,
260 F.3d 1044, 1049 (9th Cir. 2001) (citing 20 C.F.R. §
404.1545).
i. Treating Psychiatrist Dr. Syed Ahmed
Plaintiff argues that the ALJ failed to accord
appropriate deference to the expert medical report of treating
psychiatrist Dr. Syed Ahmed, who assessed Plaintiff with “marked
limitations in social functioning and marked limitations in
concentration, persistence, or pace due to his Major Depressive
Disorder and related symptoms.”
Pl.’s Br. at 9; AR 768.
Dr.
Ahmed also reported “[t]hree episodes of decompensation within
12 months, each at least two weeks long.”
AR 769.
“Although a treating physician’s opinion is generally
afforded the greatest weight in disability cases, it is not
binding on an ALJ with respect to the existence of an impairment
or the ultimate determination of disability.”
at 1004 (quotation marks omitted).
Ukolov, 430 F.3d
Moreover, the ALJ may
disregard a treating physician’s opinion, regardless of whether
or not that opinion is contradicted.
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Batson v. Comm’r of Soc.
Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (affirming
ALJ’s decision to afford treating physicians’ opinions only
minimal evidentiary weight where those opinions were in the form
of checklists, were not supported by objective medical evidence,
were contradicted by other statements and assessments of the
claimant’s medical condition, and were based on the claimant’s
subjective descriptions of pain).
However, “[a]n ALJ may reject the uncontradicted
medical opinion of a treating physician only for ‘clear and
convincing’ reasons supported by substantial evidence in the
record.”
Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir.
2001); see also Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir.
2014) (stating the same in its step four analysis).
Nevertheless, “[i]f the treating physician’s medical opinion is
inconsistent with other substantial evidence in the record,
treating source medical opinions are still entitled to
deference . . . .”
Holohan, 246 F.3d at 1202 (internal
quotation marks and brackets omitted).
An ALJ may only reject a
contradicted treating physician’s opinion by providing “specific
and legitimate reasons that are supported by substantial
evidence.”
Ghanim, 763 F.3d at 1161.
In assessing Plaintiff’s residual functional capacity,
the ALJ referenced several of Dr. Ahmed’s treatment reports.
Specifically, he noted a June 20, 2012 report in which Dr. Ahmed
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assessed Plaintiff with “major depressive disorder, recurrent
episode, moderate degree.”
AR 21, 246.
The ALJ also cited to
an August 27, 2012 follow-up appointment, where Plaintiff
reported to Dr. Ahmed that he was consuming four to five drinks
twice a week.
AR 21, 748.
The ALJ then addressed Dr. Ahmed’s Mental Impairment
Questionnaire dated October 7, 2013; this is the medical opinion
Plaintiff contends was entitled to greater deference.
766-69.
AR 22,
The ALJ noted that Dr. Ahmed’s clinical findings in
this report included “depressed mood, restricted affect, lack of
motivation, difficulty falling and staying asleep, poor
concentration and attention span and problems with recent
memory.”
AR 22.
The ALJ also noted Dr. Ahmed’s further
findings that Plaintiff had “marked limitations with social
functioning and marked limitations with concentration,
persistence and pace,”3 as well as Dr. Ahmed’s statement that
Plaintiff had experienced three episodes of decompensation
within twelve months, each lasting at least two weeks long.
23.
AR
Finally, the ALJ referenced Dr. Ahmed’s statement that
3
The Medical Impairment Questionnaire defines “marked”
limitations as those limitations that are “more than moderate
but less than extreme.” AR 768. “[T]he degree of limitation is
such as to seriously interfere with the ability to function
independently, appropriately, effectively, and on a sustained
basis.” AR 768.
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Plaintiff’s impairments or treatment would cause Plaintiff to be
absent from work about four days per month.
AR 23.
After considering Dr. Ahmed’s reports, the ALJ
indicated that he gave “little weight” to Dr. Ahmed’s opinion,
as “there is no evidence in the record to support the mental
limitations noted in the exhibit.”
AR 23.
Further, the ALJ
concluded that Dr. Ahmed’s claim that Plaintiff would miss work
four times per month was “too speculative to be adopted.”
AR
23.
1. Mental Restrictions Including
Marked Limitations in
Concentration, Persistence, or
Pace and in Social Functioning
The Ninth Circuit has held that “a conflict between
treatment notes and a treating provider’s opinions may
constitute an adequate reason to discredit the opinions of a
treating physician or another treating provider.”
Ghanim, 763
F.3d at 1161; see also Thomas v. Barnhart, 278 F.3d 947, 957
(9th 2002) (“The ALJ need not accept the opinion of any
physician, including a treating physician, if that opinion
is . . . inadequately supported by clinical findings.”).
As
Defendant points out, and as the record indicates, “Dr. Ahmed
consistently observed that Plaintiff had normal thought
processes, thought content, judgment, and impulse control and no
evidence of harmful ideation and perceptual abnormalities during
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treatment visits.”
Def.’s Br. at 8.
Indeed, Dr. Ahmed’s June
25, 2012 treatment notes state that Plaintiff denied feelings of
hopelessness or worthlessness; suicidal or homicidal ideations,
thoughts, or plans; or any auditory or visual hallucinations or
paranoid ideation.
AR 268.
The report also indicates Plaintiff
was “[a]lert and oriented to all spheres,” and that there were
“[n]o lethality issues or perceptual abnormalities noted.”
AR
268.
Dr. Ahmed’s reports from March and April 2012 reflect
similar observations.
AR 271, 274-76.
Additionally, the March
2012 report further states, “Thought process goal directed.
Thought content significant for being overwhelmed with ongoing
issues with his personal life.”
AR 276.
The April 2012 report
remarks that Plaintiff’s “lack of motivation is less now.”
271.
AR
In sum, a review of the administrative record indicates
that Dr. Ahmed’s finding of “marked” limitations in
concentration, persistence, or pace was not consistent with his
treatment notes.
Next, despite his finding of “marked” limitations in
social functioning, Dr. Ahmed’s treatment notes do not address
such limitations in any depth.
Rather, the treatment notes make
only quick reference to Plaintiff’s separation from his wife of
thirty years, limited contact with his brother, and concern for
his daughter and son, who had “bipolar disorder” and “pill
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problems,” respectively.
AR 275-76.
The treatment notes also
indicate that Plaintiff’s difficulty in quitting smoking or
drinking was due in part to the fact that “he is hanging around
with the people who smoke and drink and that is another reason
for him not to stop.”
AR 268.
Here again, the finding in Dr.
Ahmed’s medical opinion is not wholly in accord with his
treatment notes.
The Court notes that Dr. Ahmed’s treatment notes are
not completely devoid of observations that support his finding
that Plaintiff had limitations in social functioning and in
concentration, persistence, or pace.
In his initial March 2012
report, for example, Dr. Ahmed writes that Plaintiff’s
“concentration or attention span is not good,” and that, while
his long-term memory was intact, Plaintiff had problems with
short-term memory.
AR 275.
Pointing to these types of
supporting statements, Plaintiffs argue that the treatment
records were in fact consistent with Dr. Ahmed’s medical
opinion.
Pl.’s Br. at 14.
However, as stated above, “[w]here
the evidence may reasonably support more than one
interpretation, [the Court] may not substitute [its] judgment
for that of the Commissioner.”
Verduzco, 188 F.3d at 1089.
Because Dr. Ahmed’s treatment notes can reasonably be read not
to support the more serious findings indicated in his opinion,
the Court will not disturb the ALJ’s finding on this basis.
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Additionally, Plaintiff argues that the Global
Assessment of Function (“GAF”) scores he received from several
physicians undermine the ALJ’s rejection of the physicians’
medical opinions.
Pl.’s Br. at 10.
As Plaintiff points out,
Dr. Ahmed assigned to him a GAF score of 50, which indicates
“[s]erious symptoms (e.g. suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in
social, occupational, or school functioning (e.g., no friends,
unable to keep a job).”
Diagnostic and Statistical Manual of
Mental Disorders IV 31-34 (4th ed. 2000).
Plaintiff cites to an administrative message issued by
the SSA, which states the SSA’s position that GAF scores should
be treated as opinion evidence.
SSA Administrative Message
13066 (“AM-13066”) (effective July 22, 2013).
However, the
administrative message also explains, “As with other opinion
evidence, the extent to which an adjudicator can rely on the GAF
rating as a measure of impairment severity and mental
functioning depends on whether the GAF rating is consistent with
other evidence, how familiar the rater is with the claimant, and
the rater’s expertise.”
Id.
Notably, the Ninth Circuit has held that an ALJ is not
required to address GAF scores, “because a GAF score is merely a
rough estimate of an individual’s psychological, social, or
occupational functioning used to reflect an individual’s need
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for treatment, but it does not have any direct correlative workrelated or functional limitations.”
Hughes v. Colvin, 599 F.
App’x 765, 766 (9th Cir. 2015); Doney v. Astrue, 485 F. App’x
163, 165 (9th Cir. 2012); Vargas v. Lambert, 159 F.3d 1161, 1164
n.2 (9th Cir. 1998).
Additionally, in its Revised Medical
Criteria for Evaluating Mental Disorders and Traumatic Brain
Injury, the SSA states that it does not endorse use of the GAF
scale in the Social Security or Supplemental Security Income
disability programs, and that the scale “does not have a direct
correlation to the severity requirements in [the SSA’s] mental
disorders listings.”
65 Fed. Reg. 50746, 50764 (Aug. 21, 2000).
Nevertheless, taking the GAF scores into account, it
is clear that, Dr. Ahmed’s treatment notes directly contradict
the GAF score of 50 he assigned Plaintiff, for the same reasons
as explained above.
GAF scores assigned by other physicians in
the record likewise fail to comport with their respective
treatment notes.
Indeed, in recognition of the difficulty in
using GAF scores to evaluate disability, the SSA administrative
message also notes, “The problem with using the GAF to evaluate
disability is that there is no way to standardize measurement
and evaluation . . . . Research has also identified the
propensity of some clinicians to give inflated or
unrealistically low GAF ratings because the GAF rating
instructions . . . are unclear . . . . [R]ating problems . . .
- 21 -
can lead to improper assessment of impairment severity.”
AM-13066.
For his part, the ALJ made reference to Plaintiff’s
GAF scores, but clearly did not find them supportive of Dr.
Ahmed’s or the other physicians’ opinions.
See Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014)
(“[W]e leave it to the ALJ to determine credibility, resolve
conflicts in the testimony, and resolve ambiguities in the
record.”).
The disparity between the GAF scores and treatment
notes indicates that the ALJ did not commit legal error in
failing to give these scores greater weight.
2. Episodes of Decompensation
The Court next turns to Dr. Ahmed’s statement in his
Mental Impairment Questionnaire that Plaintiff had experienced
three episodes of decompensation within twelve months, each
lasting more than two weeks.
AR 769.
The Social Security
regulations define episodes of decompensation as “exacerbations
or temporary increases in symptoms or signs accompanied by a
loss of adaptive functioning, as manifested by difficulties in
performing activities of daily living, maintaining social
relationships, or maintaining concentration, persistence, or
pace.”
20 C.F.R. Part 404, Subpart P, App. 1 § 12.00(C)(4).
The regulations further state that “[e]pisodes of decompensation
may be inferred from medical records showing significant
- 22 -
alteration in medication; or documentation of the need for a
more structured psychological support system (e.g.,
hospitalizations, placement in a halfway house, or a highly
structured and directing household).”
Id.
Dr. Ahmed indicated in his treatment notes that he
prescribed Plaintiff psychotropic medication, which he increased
from 10 milligrams to 20 milligrams (after a two-week trial
period), and later to 40 milligrams.
AR 269, 271, 276.
He also
prescribed Plaintiff Trazodone for insomnia, and later switched
Plaintiff to Ambien due to side effects Plaintiff experienced
with the Trazodone.
AR 269, 271, 276.
Nothing in Dr. Ahmed’s
treatment notes indicates that he felt he was making
“significant alterations in medication” in response to
“exacerbations or temporary increases” in Plaintiff’s symptoms
when he increased Plaintiff’s psychotropic medication dosage and
switched the prescription used to treat Plaintiff’s insomnia.
Additionally, Dr. Ahmed nowhere documented any need for a more
structured psychological support system, and there is no
evidence anywhere in the record of a psychiatric hospitalization
during the relevant time period.4
4
The evidence appears to be inconsistent regarding Plaintiff’s
past psychiatric hospitalizations. While a Psychiatric
Evaluation by Dr. Susan Santarpia and a Psychiatric Review
Technique by Dr. Juan Echevarria both indicate Plaintiff’s
denial of any previous psychiatric hospitalizations or
treatment, a Disability Benefits Questionnaire by Dr. Hillary
- 23 -
For the foregoing reasons, the Court finds that the
ALJ’s determination that there was “no evidence in the record to
support the mental limitations noted in the exhibit” finds
substantial support in the record.
Specifically, Dr. Ahmed’s
treatment notes detailing Plaintiff’s goal-oriented thought
processes, alertness, orientation, and lack of perceptual
abnormalities, among other factors, contradict Dr. Ahmed’s
finding that Plaintiff suffered “marked” limitations with
concentration, persistence, or pace.
Additionally, aside from
the contradictory GAF score of 50, which the ALJ was not
required to credit and which Dr. Ahmed did not expound upon in
his treatment notes, there is no evidence to suggest Plaintiff
suffered “marked limitations in maintaining social functioning.”
Finally, Dr. Ahmed’s treatment notes are devoid of any evidence
indicating Plaintiff experienced three episodes of
decompensation.
3. Work Limitations
Finally, the ALJ found that Dr. Ahmed’s contention
that Plaintiff’s symptoms or treatment would cause him to miss
about four days of work per month was “speculative.”
AR 23.
As
Tzetzo indicates that Plaintiff was hospitalized in a
psychiatric unit after a “pill ingestion.” AR 554, 576, 654.
However, because this apparent hospitalization occurred sometime
prior to June of 1984, it is irrelevant to a determination of
whether Plaintiff experienced any episode of decompensation
during the twelve-month period Dr. Ahmed addressed in his
report.
- 24 -
none of Dr. Ahmed’s treatment reports speak to how much work
Plaintiff would likely or did in fact miss due to his
impairments or treatment, the Court finds that the ALJ’s finding
is supported by substantial evidence in the record.
4. Consistency with the Remainder of
the Evidence
Significantly, Dr. Ahmed’s findings are also contrary
to the other evidence of record.
For example, Dr. Santarpia’s
Psychiatric Evaluation dated September 4, 2012 indicates
Plaintiff’s “demeanor and responsiveness to questions was
cooperative”; “[h]is manner of relating and overall presentation
was adequate”; his attention, concentration, and recent and
remote memory skills were intact; and his cognitive functioning
was average.
AR 555-56.
Plaintiff notes that the remainder of the objective
medical evidence instead supports Dr. Ahmed’s findings.
Br. at 10.
Pl.’s
For example, a February 15, 2012 VA summary
indicates Plaintiff felt “down, depressed, or hopeless [n]early
every day.”
AR 309.
A February 29, 2012 summary assessed his
mood as “a 2 out of 10, with 10 being elated,” and noted that he
felt “depressed and apathetic.”
AR 293-94.
Notably, that same
summary also stated that “[t]hought processes are clear and
goal-directed” and “[j]udgment and insight are intact.”
- 25 -
AR 293.
Again, to the extent the record is inconsistent, it is
the province of the ALJ, not the Court, to resolve ambiguities.
Treichler, 775 F.3d at 1098 (“For highly fact-intensive
individualized determinations like a claimant's entitlement to
disability benefits, Congress places a premium upon agency
expertise, and, for the sake of uniformity, it is usually better
to minimize the opportunity for reviewing courts to substitute
their discretion for that of the agency . . . . Consequently, we
leave it to the ALJ to determine credibility, resolve conflicts
in the testimony, and resolve ambiguities in the record.”)
(internal quotation marks and citation omitted).
Moreover, it is worth noting that the ALJ did not deny
Plaintiff’s symptoms in their entirety.
The ALJ recognized that
while Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms . . . the
objective medical evidence does not support the alleged severity
of symptoms.”
AR 23 (emphasis added).
Thus, the portions in
the record that speak to Plaintiff’s impairments and associated
symptoms are entirely consistent with the ALJ’s finding that
Plaintiff had “occasional limitations in the ability to
understand, remember and carry out detailed instructions
(defined as mild limitations) and occasional limitations in the
ability to make decisions.”
AR 19; Cf. Social Security Ruling
(“SSR”) 96-8P, 1996 WL 374184, *4 (1996) (noting the distinction
- 26 -
between “an individual’s limitations and restrictions from a
mental impairment(s)” and a residual functional capacity
determination, which “requires a more detailed assessment”).
For the foregoing reasons, the Court finds that the
ALJ did not commit legal error by assigning “little weight” to
Dr. Ahmed’s opinion, nor did the ALJ improperly substitute his
own judgment for that of Dr. Ahmed.
The ALJ gave specific and
legitimate reasons for discrediting Dr. Ahmed’s contested
report, namely, that the report was contrary to the evidence of
record and that his claim that Plaintiff would miss work four
times per month was speculative.
Substantial evidence in the
record supports these findings, and the Court therefore DENIES
Plaintiff’s Motion for Summary Adjudication on this issue and
AFFIRMS this portion of the ALJ’s decision.
ii. Examining Physician Dr. Hillary Tzetzo
Dr. Hillary Tzetzo, a staff psychiatrist with the VA
and examining physician of Plaintiff, completed a Disability
Benefits Questionnaire regarding Plaintiff on August 19, 2013.
AR 651-664.
“As is the case with the opinion of a treating
physician, the Commissioner must provide ‘clear and convincing’
reasons for rejecting the uncontradicted opinion of an examining
physician.”
Lester v. Chater, 69 F.3d 1453, 1463 (9th Cir.
1995) (superseded by statute on other grounds).
Similarly, a
contradicted opinion by an examining doctor may only be rejected
- 27 -
for specific and legitimate reasons that are supported by
substantial evidence in the record.
Id. at 1463-64.
1. Whether Dr. Tzetzo’s Report
Constitutes a Medical Opinion
As an initial matter, Defendant argues that Dr.
Tzetzo’s questionnaire does not constitute opinion evidence
under the agency’s regulations.
Def.’s Br. at 14.
Therefore,
Defendant argues, the ALJ did not commit reversible error in
failing to evaluate the evidence contained in the questionnaire
because an ALJ is not required to discuss every piece of
evidence in the record.
1012).
Id. at 15 (citing Howard, 341 F.3d at
Implicit in Defendant’s argument is that, had Dr.
Tzetzo’s questionnaire constituted a medical opinion, the ALJ
would have had to provide either “clear and convincing” or
“specific and legitimate” reasons for rejecting the
questionnaire, due to Dr. Tzetzo’s being an examining physician.
In support of this contention that Dr. Tzetzo’s
questionnaire is not a medical opinion, Defendant cites to 20
C.F.R. § 404.1527(a)(2) and § 416.927(a)(2), which state,
“Medical opinions are statements from physicians and
psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of your impairment(s),
including your symptoms, diagnosis and prognosis, what you can
- 28 -
still do despite impairment(s), and your physical or mental
restrictions.”
(Emphasis added.)
Defendant focuses on the latter part of the
regulations’ language, arguing that Dr. Tzetzo’s “vague”
statement provides no discussion of Plaintiff’s specific
functional limitations and “[does] not specify what, if any,
limitations Plaintiff had in his ability to perform basic mental
work activities.”
Def.’s Br. at 14.
Nevertheless, Defendant
does concede that the statement referenced Plaintiff’s
psychiatric symptoms.
Id.
However, Defendant provides no case law in support of
the contention that medical opinions must contain a description
of “what [a claimant] can still do despite impairment(s), and [a
claimant’s] physical or mental restrictions.”
§§ 404.1527(a)(2), 416.927(a)(2).
See 20 C.F.R.
Nor has the Court been able
to locate any supporting case law.
Indeed, the Court notes that
the regulations simply state that medical opinions may include
statements regarding a claimant’s limitations or restrictions.
Dr. Tzetzo’s statement, which was based on an inperson examination, included judgments about the nature and
severity of Plaintiff’s impairments, AR 652, 655 (“Occupational
and social impairment with deficiencies in most areas . . . .
85% of vet’s occupational and social impairments appear to be
related to MDD [Major Depressive Disorder] . . . .”);
- 29 -
Plaintiff’s symptoms, AR 657 (listing, inter alia, depressed
mood, mild memory loss, flattened affect, and disturbances of
motivation and mood); Plaintiff’s diagnosis and prognosis, AR
654, 656 (listing major depressive disorder and cognitive
disorder); and Plaintiff’s mental restrictions, AR 657 (listing
“[d]ifficulty in establishing and maintaining effective work and
social relationships” and “[d]ifficulty in adapting to stressful
circumstances, including work or a worklike [sic] setting”).
The Court thus finds that Dr. Tzetzo’s statement
constitutes a medical opinion by an examining physician.
2. Whether the ALJ Improperly
Rejected Dr. Tzetzo’s Medical
Opinion
The Court next considers whether the ALJ committed
legal error in failing to substantively discuss Dr. Tzetzo’s
statement.
In his decision, the ALJ made only one mention of
Dr. Tzetzo’s opinion, stating, “On August 19, 2013, VA staff
psychiatrist[] Dr. H. Tzetzo stated that 85% of the claimant’s
overall current mental health symptoms appear to be due to major
depressive disorder, while 15% appear to be due to TBI
[traumatic brain injury] residuals . . . .”
AR 22.
Thus, the
ALJ did not explicitly reject or discredit Dr. Tzetzo’s
statement; rather, he simply ignored the majority of the medical
opinion.
In doing so, the ALJ committed legal error.
See
Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (“Where
- 30 -
an ALJ does not explicitly reject a medical opinion . . . he
errs . . . . In other words, an ALJ errs when he rejects a
medical opinion or assigns it little weight while doing nothing
more than ignoring it . . . .”); see also Marsh v. Colvin, 792
F.3d 1170, 1172-73 (9th Cir. 2015) (“Because a court must give
‘specific and legitimate reasons’ for rejecting a treating
doctor’s opinions, it follows even more strongly that an ALJ
cannot in its decision totally ignore a treating doctor and his
or her notes, without even mentioning them.”).
The Court next considers whether the ALJ’s error was
harmless.
See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.
2012) (stating that a court “may not reverse an ALJ’s decision
on account of an error that is harmless”).
“The burden of
showing that an error is harmful normally falls upon the party
attacking the agency’s determination.”
Id. (quotation marks,
citation, and brackets omitted).
As Plaintiff asserts, “Dr. Tzetzo opined that Mr.
Parvon experienced social and occupational impairment with
deficiencies in a number of functional areas, including work,
school, family relations, judgment, mood, and thinking.”
Br. at 11; AR 655.
Pl.’s
The report also indicates such symptoms as
“[d]ifficulty in establishing and maintaining effective work and
social relationships” and “[d]ifficulty in adapting to stressful
circumstances, including work or a worklike [sic] setting.”
- 31 -
AR
657.
It further notes “mild impairment of memory, attention,
concentration, or executive functions resulting in mild
functional impairment” and “[s]ocial interaction is routinely
appropriate.”
AR 662.
Defendant argues that the ALJ did not commit
reversible error because Dr. Tzetzo’s findings are in line with
the residual functional capacity assessment.
16.
Def.’s Br. at 15-
The Court agrees with Defendant to the extent Dr. Tzetzo’s
report indicated “mild” impairment in memory, attention,
concentration, and executive functions.
This comports with the
ALJ’s finding of “occasional limitations in the ability to
understand, remember and carry out detailed instructions
(defined as mild limitations) and occasional limitations in the
ability to make decisions.”
AR 19.
However, while Dr. Tzetzo found Plaintiff acted
“appropriately” in social situations, he did note Plaintiff’s
“[d]ifficulty in establishing and maintaining effective work and
social relationships.”
AR 657.
This was not a factor the ALJ
included in his residual functional capacity assessment, as each
physician who commented on it rendered an opinion that the ALJ
ultimately discredited.
As Plaintiff points out, “This issue is
significant because the ALJ found that Mr. Parvon could perform
his skilled past relevant work as a sales representative in
three different sales fields, all of which require significant
- 32 -
social skill . . . .
Indeed, all of the Sales Representative
positions involve the following:
people skills; the ability to
influence people in their opinions, attitudes, and judgments;
[and] speaking extemporaneously on a variety of
subjects . . . .”
Pl.’s Br. at 11.
Plaintiff does not cite to any authority for this
description of the various sales positions, except to reference
the Department of Labor codes corresponding to each of his past
relevant work positions.
See Dictionary of Occupational Titles
(Dep’t. of Labor, 4th ed. 1991) ## 273.357-034 (salesperson,
trailers and motor homes), 275.257-010 (sales representative,
computers and EDP systems), 275.357-034 (sales representative,
office machines).
None of the Department of Labor definitions
address the interpersonal requirements of the positions.
However, when presented with a hypothetical person
who, among other limitations not included in the residual
functional capacity assessment, had “occasional limitations in
the ability to interact with the general public,” the VE stated
he did not believe such a person could perform any of
Plaintiff’s past relevant work.5
AR 57-58.
5
This hypothetical
This was the second hypothetical the ALJ posed to the VE. In
the first, the ALJ presented a hypothetical person possessing
the residual functional capacity the ALJ ultimately assessed to
Plaintiff. AR 56-57. When asked whether that hypothetical
person could perform Plaintiff’s past relevant work, the VE
responded that the individual could. AR 57. The ALJ’s second
- 33 -
also assumed that the person would have “[o]ccasional
limitations in the ability to respond appropriately to changes
in a work setting,” a limitation that Dr. Tzetzo noted in his
report but that the ALJ likewise left out of his residual
functional capacity assessment.
AR 57, 657 (noting
“[d]ifficulty in adapting to stressful circumstances, including
work or a worklike [sic] setting”).
Because Dr. Tzetzo’s medical opinion contained
findings that could potentially alter the ALJ’s step four
determination, the Court finds that the ALJ’s implicit rejection
of the opinion was not harmless.
“Remand for further administrative proceedings is
appropriate if enhancement of the record would be useful.”
Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); see also
Sullivan v. Hudson, 490 U.S. 877, 885 (1989) (“[T]he district
court’s remand order will often include detailed instructions
concerning the scope of the remand, the evidence to be adduced,
and the legal or factual issues to be addressed.”).
However,
where the record is fully developed and “further administrative
proceedings would serve no useful purpose,” a court should
remand for an immediate award of benefits.
Benecke, 379 F.3d at
hypothetical assumed all of the non-exertional limitations of
the first hypothetical, and added several other limitations that
the ALJ did not include in his ultimate residual functional
capacity assessment of Plaintiff. AR 57.
- 34 -
593.
“More specifically, the 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.”
Id.
Here, the record is not sufficiently developed to
allow this Court to make a determination whether Plaintiff is
disabled within the meaning of the Social Security Act.
The VE
indicated that a hypothetical person with “occasional
limitations” in his abilities to “interact with the general
public” and “respond appropriately to changes in a work setting”
would not be able to perform Plaintiff’s past relevant work.
57-58.
AR
However, this hypothetical also presumed that the person
would have “occasional limitations in the ability to perform
certain activities within a schedule.”
AR 57.
This limitation
was not specifically discussed in Dr. Tzetzo’s opinion, nor was
it discussed in the ALJ’s residual functional capacity
assessment, meaning that the ALJ did not attribute it to
Plaintiff.
It is therefore unclear whether the social and
adaptive limitations Dr. Tzetzo observed would change the step
four analysis, or whether the additional limitation not
- 35 -
attributable to Plaintiff was determinative of the VE’s
assessment that the person the ALJ described in his hypothetical
would be incapable of performing Plaintiff’s past work.6
Furthermore, resolution of this issue leads to another
potential issue in the case that Plaintiff’s social and adaptive
limitations are found to preclude him from performing his past
relevant work:
whether Plaintiff could perform other available
6
When asked to assess whether this hypothetical person could
adjust to any other work (the step five inquiry), the VE stated
his belief that the person could not. AR 58. When asked why,
the VE explained, “Specifically the occasional limitations in
completing a normal work week and in maintaining schedules, I
feel would preclude the individual from sustaining work.” AR
58. Again, difficulty in maintaining schedules was the
limitation not attributed to Plaintiff by either the ALJ or Dr.
Tzetzo.
Importantly, however, this statement does not suggest that
these two limitations were also determinative of the VE’s
finding that the hypothetical person could not engage in his
past relevant work. Step four asks the ALJ to consider whether
the claimant can perform his past relevant work; if not, step
five asks the ALJ to consider whether the claimant can make an
adjustment to other work. Thus, while the social and adaptive
limitations identified by Dr. Tzetzo may not have necessarily
precluded the hypothetical person from adjusting to other work
(step five), these limitations could still have been a factor in
that person’s inability to perform his past relevant work (step
four). In other words, based on the VE’s statement, the social
and adaptive limitations assessed at step four might be obviated
if the hypothetical person transitioned to other work that did
not require him to work closely with others or in a setting
subject to frequent change. The person’s difficulty in
completing a normal work week or maintaining a schedule, on the
other hand, could not be accommodated by adjusting to other
work.
- 36 -
work, as examined in step five.7
The Court is not equipped to
make such a determination in light of the available evidence,8
and indeed, it is incumbent on the SSA to present during step
five “evidence that demonstrates that other work exists in
significant numbers in the national economy that [Plaintiff] can
do,” given his residual functional capacity and vocational
factors.
20 C.F.R. § 404.1560(c)(2).9
7
A third potential issue that arises is whether Dr. Tzetzo’s
report is sufficiently probative, given that it was rendered on
August 19, 2013 – outside Plaintiff’s closed period of
disability. AR 651. But see Smith v. Bowen, 849 F.2d 1222,
1225 (9th Cir. 1988) (“We think it is clear that reports
containing observations made after the period for disability are
relevant to assess the claimant’s disability . . . . It is
obvious that medical reports are inevitably rendered
retrospectively and should not be disregarded solely on that
basis.”).
8
As noted in footnote 6, the VE found that the hypothetical
person’s “occasional limitations in completing a normal work
week and in maintaining schedules” would prevent him from
engaging in other work. AR 58. However, the VE did not
specifically remark on whether a person possessing limitations
consistent with those in Dr. Tzetzo’s disregarded report would
be capable of adjusting to other work. Nor did the SSA present
evidence regarding the specific work to which Plaintiff could
adjust, or whether such work exists in significant numbers in
the national economy. Finally, because the ALJ found Plaintiff
capable of performing his past relevant work, he stopped short
of analyzing whether Plaintiff could transition to other work.
9
The Court notes that the ALJ’s disregard of Dr. Tzetzo’s report
was not harmful to the ALJ’s step three analysis. Dr. Tzetzo’s
opinion does not satisfy two out of the four “paragraph B”
criteria because it does not indicate marked restrictions in
activities of daily living or repeated episodes of
decompensation. Additionally, Dr. Tzetzo reported “mild
impairment of memory, attention, concentration, or executive
functions resulting in mild functional impairment,” which
- 37 -
For all the foregoing reasons, the Court finds that
the ALJ committed reversible error in failing to adequately
address Dr. Tzetzo’s medical opinion.
The Court therefore
GRANTS summary adjudication to Plaintiff on this issue and
REMANDS this case for further administrative proceedings in
order to determine the effect of Dr. Tzetzo’s opinion on
Plaintiff’s disability assessment.
iii. Examining Physician Dr. Susan Santarpia
The ALJ also gave “little weight” to the opinion of
examining physician Dr. Susan Santarpia because “her medical
source statement conflicts with her prognosis.”
AR 22.
Plaintiff does not appear to genuinely contest this finding,
conceding in a footnote that Dr. Santarpia found only mild
impairments and limited socialization, and noting that the ALJ
attributed “little weight” to the opinion, as he had with
others.
Pl.’s Br. at 10.
Indeed, Dr. Santarpia found Plaintiff was “able to
follow and understand simple directions and instructions,
perform simple tasks independently, maintain attention and
concentration, maintain a regular schedule, learn new tasks,
indicates Plaintiff did not suffer “marked difficulties in
maintaining concentration, persistence, or pace.” AR 662; see
also 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.02(B).
Similarly, there is no evidence in the report that Plaintiff
satisfies any of the “paragraph C” criteria. See 20 C.F.R. Part
404, Subpart P, Appendix 1 § 12.02(C).
- 38 -
relate adequately with others, and appropriately deal with
stress within normal limits.”
AR 556-57.
Dr. Santarpia found
“limited socialization with friends and family,” but indicated
no social limitations.
AR 556.
Further, she found “mild
impairment is demonstrated in performing complex tasks
independently and making appropriate decisions,” and noted
difficulties caused by chronic alcohol consumption.
AR 557.
The ALJ determined that these findings were
inconsistent with her prognosis, which simply stated, “Guarded
given chronic alcohol consumption.”
AR 557.
However, whether
or not this constituted a true inconsistency is irrelevant,
since Dr. Santarpia’s findings were consistent with the ALJ’s
findings in his step three analysis and in his residual
functional capacity assessment.
AR 19-23.
Thus, any error the
ALJ committed was harmless.
The Court therefore finds that the ALJ did not commit
reversible error by assigning “little weight” to Dr. Santarpia’s
opinion.
iv. Non-examining Physician Dr. Juan
Echevarria
Finally, non-examining physician Dr. Juan Echevarria
performed a Psychiatric Review Technique of Plaintiff on
September 17, 2012.
AR 564-76.
As a general proposition, “the
opinion of a treating physician must be given more weight than
- 39 -
the opinion of an examining physician, and the opinion of an
examining physician must be afforded more weight than the
opinion of a reviewing physician.”
Ghanim, 763 F.3d at 1160.
Dr. Echevarria found mild difficulties in maintaining
social functioning and in maintaining concentration,
persistence, or pace.
AR 574.
insight and judgment were poor.
He also found that Plaintiff’s
AR 576.
However, because Dr.
Echevarria classified Plaintiff with non-severe mental
retardation, for which there was no evidence in the record, the
ALJ gave “little weight” to his opinion.
AR 22.
Because the ALJ correctly observed that there is no
evidence of mental retardation in the record, the Court finds
that his decision to reject Dr. Echevarria’s opinion was
supported by sufficient evidence.
See Sousa v. Callahan, 143
F.3d 1240, 1244 (9th Cir. 1998) (“The Commissioner may reject
the opinion of a non-examining physician by reference to
specific evidence in the medical record.”).
The Court therefore concludes that the ALJ did not
commit legal error in according “little weight” to Dr.
Echevarria’s non-examining medical opinion, and therefore DENIES
summary adjudication to Plaintiff on this issue and AFFIRMS the
ALJ on the same.
- 40 -
v. Residual Functional Capacity Assessment
and Vocational Expert Hypothetical
Plaintiff also argues that the ALJ “failed to
accommodate the severe mental limitation he assessed at Step 2
in his RFC finding, and otherwise made contradictory findings as
to Mr. Parvon’s mental functional abilities.”
Pl.’s Br. at 14.
Specifically, Plaintiff contends that because the ALJ assessed
Plaintiff’s depression as “severe” at step two, his residual
functional capacity finding and VE hypothetical should have
included correspondingly severe mental limitations.
Id. at 15.
Additionally, Plaintiff asserts that since the ALJ
found mild restrictions in activities of daily living during
step three, his residual functional capacity finding and VE
hypothetical should likewise have included these limitations.
Id. at 16 (citing SSR 96-8P, 1996 WL 374184 at *4 for the
proposition that the residual functional capacity assessment
“requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraphs
B and C of the adult mental disorders listings in 12.00 [Mental
Disorders] of the Listing of Impairments [in the Social Security
regulations]”); AR 18.
The step four residual functional capacity assessment
is a separate inquiry from steps two and three, where the ALJ
considers medical evidence to determine the nature and severity
- 41 -
of the claimant’s impairments, as well as whether those
impairments medically equal the requirements of an impairment
listed in the Social Security regulations.
§§ 404.1527(d)(2), 404.1520.
See, e.g., 20 C.F.R.
In contrast, the final
responsibility for deciding residual functional capacity and the
application of vocational factors is reserved to the
Commissioner.
20 C.F.R. §§ 404.1527(d)(2); Vertigan, 260 F.3d
1044 at 1049.
Further, as Defendant points out, the Ninth Circuit
has found that the ALJ is under no obligation to include in the
residual functional capacity assessment limitations he finds at
steps two and three.
See, e.g., Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1228-29 (9th Cir. 2009) (finding that ALJ
properly accounted for claimant’s disorder in the residual
functional capacity assessment and VE hypothetical, despite the
fact that neither of these fully captured the severe impairment
determined at step two); Israel v. Astrue, 494 F. App’x 794, 796
(9th Cir. 2012) (rejecting claimant’s contention that the ALJ
erred by not adequately including his step three findings in the
residual functional capacity finding and VE hypothetical and
stating, “The limitations identified in step 3 . . . are not an
RFC assessment but are used to rate the severity of mental
impairment(s) at steps 2 and 3 . . . . The ALJ must consider the
step-3 limitations along with all of the relevant evidence in
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the case record . . . when forming the RFC.”) (emphasis in
original) (internal quotation marks and citations omitted).
Here, despite according the medical opinions “little
weight,” the ALJ reviewed all of the relevant evidence in the
case record and made an assessment that was consistent with the
restrictions identified in the objective medical evidence.
See
Israel, 494 F. App’x at 796 (citing Stubbs-Danielson v. Astrue,
539 F.3d 1169, 1174 (9th Cir. 2008).
Per the agency’s
regulations and Ninth Circuit case law, the ALJ was not required
to conform his residual functional capacity assessment and VE
hypothetical with the limitations identified in the earlier
steps.
The Court therefore finds that the ALJ did not commit
legal error in declining to include in his residual functional
capacity assessment and VE hypothetical certain restrictions
from steps two and three, and thus DENIES summary adjudication
to Plaintiff on this issue and AFFIRMS the ALJ on the same.
III.
Appeals Council Decision
Finally, Plaintiff argues that the Appeals Council
violated an absolute duty to consider and address the September
2013 VA decision, which evaluated Plaintiff as 70% disabled as
of April 10, 2012 due to his major depressive disorder.
Br. at 17-18; Pl.’s Reply at 5-6; AR 199-205.
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Pl.’s
For some unknown
reason Plaintiff had failed to introduce this VA decision in his
hearing before the ALJ.
In declining to evaluate the VA decision, the Appeals
Council stated that the “Department of Veterans Affairs has a
different evaluation process and utilizes different standards to
determine disability.”
AR 2.
Additionally, as noted above, the
Appeals Council incorrectly stated that the VA decision was
dated September 12, 2014.
Pl.’s Br. at 6 n.3; AR 2.
It then
characterized the decision as “new information . . . about a
later time.”
AR 2.
However, the record indicates that the VA
decision was actually dated September 4, 2013, prior to when the
ALJ issued his decision on December 10, 2013.
AR 199.
Plaintiff contends that while the VA decision is not
binding on the SSA, the Appeals Council was required to consider
the decision, as it constituted a finding by another
governmental agency.
Pl.’s Br. at 17; SSR 06-03p, 2006 WL
2329939, *6 (2006) (“[A] determination made by another
agency . . . that you are disabled . . . is not binding on
us . . . . [E]vidence of a disability decision by another
governmental or nongovernmental agency cannot be ignored and
must be considered.”).
Further, Plaintiff argues that the Appeals Council is
also required to review new evidence that a claimant submits.
20 C.F.R. § 404.970(b) (“If new and material evidence is
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submitted, the Appeals Council shall consider the additional
evidence only where it relates to the period on or before the
date of the administrative law judge hearing decision.”); Brewes
v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir.
2012) (“The Commissioner's regulations permit claimants to
submit new and material evidence to the Appeals Council and
require the Council to consider that evidence in determining
whether to review the ALJ's decision, so long as the evidence
relates to the period on or before the ALJ's decision.”); Taylor
v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1233 (9th Cir.
2011).
In response, Defendant argues that this Court does not
have jurisdiction to review the Appeals Council’s denial of
Plaintiff’s request for review, since such actions are not
subject to judicial review.
Def.’s Br. at 25-26.
As the Ninth
Circuit has stated, a denial of a claimant’s request for review
by the Appeals Council is a “non-final agency action not subject
to judicial review because the ALJ’s decision becomes the final
decision of the Commissioner.”
Taylor, 659 F.3d at 1231 (citing
Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008) for the
proposition that the Social Security Act grants district courts
jurisdiction to review only “final decisions of the
Commissioner”).
Therefore, a district court may neither affirm
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nor reverse an Appeals Council decision denying a request for
review.
Id.
Nevertheless, while a court cannot reverse such an
Appeals Council decision, it can review new evidence submitted
to the Appeals Council.
See Taylor, 659 F.3d at 1231-33
(reviewing expert medical opinions submitted to and rejected by
the Appeals Council and remanding case to the ALJ upon finding
that the Appeals Council was required to consider the additional
evidence); Mengistu v. Colvin, 537 F. App’x 724, 725 (9th Cir.
2013) (stating that the court “may consider additional evidence
presented for the first time to the Appeals Council when
reviewing the agency’s disability determination,” and remanding
case to the ALJ because “there [was] a reasonable possibility
the report would have changed the [ALJ’s] decision”); see also
Wilder v. Comm’r of Soc. Sec. Admin., 545 F. App’x 638, 639-40
(9th Cir. 2013) (noting that new evidence upon which the Appeals
Council failed to remark in denying review “nevertheless became
part of the administrative record on appeal,” but denying remand
because the new evidence was contradictory and based on an
unreliable source).
Because the VA decision was dated September 4, 2013
and found Plaintiff to be disabled as of April 10, 2012, it
clearly relates to the time period before the date of the ALJ’s
hearing decision.
AR 24, 199.
It therefore satisfies the
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requirements of 20 C.F.R. § 404.970 and the Appeals Council was
obligated to consider it.
See Taylor, 659 F.3d at 1233 (finding
that a medical opinion concerning claimant’s mental health
related to the period before claimant’s disability insurance
coverage expired or the ALJ rendered his decision, and therefore
should have been considered by the Appeals Council).
Further,
contrary to Defendant’s contention, Plaintiff was not required
to show “good cause” before submitting this new evidence to the
Appeals Council.
Brewes, 682 F.3d at 1162.
Because the VA decision found Plaintiff 70% disabled
due to his major depressive disorder, it goes to the heart of
his claims for disability insurance and supplemental security
income.
The VA decision based its conclusion on such factors as
Plaintiff’s “[d]ifficulty adapting to stressful circumstances”;
“[o]ccupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood”; and “[d]ifficulty in establishing and
maintaining effective work and social relationships.”
AR 201.
Thus, the decision is consistent with findings noted elsewhere
in the administrative record and bears on the question whether
Plaintiff was disabled during the relevant period for purposes
of obtaining benefits.
Remand is therefore appropriate in this
situation.
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The Court recognizes that a decision rendered by
another governmental agency is not binding on the SSA, and that
it is therefore unclear how the ALJ would have treated the
decision had he reviewed it in the first instance, especially in
light of the new evidence in Dr. Tzetzo’s report the ALJ must
now consider on remand.
It is for this additional reason that
the Court finds it most appropriate for the ALJ to consider the
VA decision on remand as well.
Indeed, “[w]here the Appeals
Council was required to consider additional evidence, but failed
to do so, remand to the ALJ is appropriate so that the ALJ can
reconsider its decision in light of the additional evidence.”
Taylor, 659 F.3d at 1233.
The Court therefore GRANTS summary adjudication to
Plaintiff on this issue, and REMANDS the matter to the ALJ to
reconsider Plaintiff’s disability status in light of the VA
decision.
CONCLUSION
For the foregoing reasons, the Court GRANTS in part
and DENIES in part Plaintiff’s Motion for Summary Adjudication,
and thereby AFFIRMS in part and REVERSES in part the
Commissioner’s decision denying Social Security disability
benefits to Plaintiff.
Specifically, the Court finds that
1) the ALJ’s decision to disregard the medical opinions of Dr.
Ahmed, Dr. Santarpia, and Dr. Echevarria did not constitute
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legal error; 2) the ALJ’s decision to implicitly disregard the
medical opinion of Dr. Tzetzo constituted reversible legal
error; 3) the ALJ did not commit legal error in conducting his
residual functional capacity assessment or crafting his VE
hypothetical, neither of which included certain limitations the
ALJ identified in steps two and three of the sequential process
for determining whether a claimant is disabled; and 4) the
Appeals Council was required to consider the VA decision, which
became part of the overall administrative record when Plaintiff
submitted it as new evidence and the Appeals Council denied his
request for review.
Accordingly, the Court hereby REMANDS this case to the
ALJ for further administrative proceedings in order to
determine, in conjunction with considering the entire record,
the effect of Dr. Tzetzo’s medical opinion and the VA decision
on Plaintiff’s disability assessment.
IT IS SO ORDERED.
DATED:
Honolulu, Hawai’i, March 11, 2016.
________________________________
Alan C. Kay
Sr. United States District Judge
Parvon v. Colvin, Civ. No. 15-00110 ACK-BMK, Order Granting in Part and
Denying in Part Plaintiff’s Motion for Summary Adjudication and Remanding
Case.
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