Dorothy L. Crisp v. Michael J. Astrue, No. 2:2010cv06821 - Document 16 (C.D. Cal. 2011)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. §405(g), for further administrative proceedings consistent with the decision. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 DOROTHY L. CRISP, 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner of Security, 16 Defendant. 17 No. CV 10-6821(CW) DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner s denial of disability and disability 22 insurance benefits. 23 Commissioner s decision should be reversed and remanded for further 24 administrative proceedings consistent with this decision and order. 25 26 Plaintiff seeks As discussed below, the court finds that the I. BACKGROUND Plaintiff Dorothy L. Crisp was born on November 17, 1953, and was 27 fifty-one years old on the alleged disability onset date 28 [Administrative Record, AR, 94.] She has a law degree and past 1 1 relevant work experience as an attorney. [AR 16.] 2 disability due to post-traumatic stress disorder ( PTSD ) stemming 3 from a sexual assault. [AR 123.] 4 5 II. Plaintiff alleges PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on September 14, 2010, and filed 6 on September 15, 2010. On March 18, 2011, defendant filed an answer 7 and plaintiff s Administrative Record ( AR ). 8 parties filed their Joint Stipulation ( JS ) identifying matters not 9 in dispute, issues in dispute, the positions of the parties, and the 10 relief sought by each party. 11 On May 23, 2011, the submission without oral argument. 12 13 III. This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for disability insurance benefits ( DIB ) on 14 February 17, 2006, alleging disability since August 16, 2005. [AR 94.] 15 She met the insured status requirements of the Social Security Act 16 through December 31, 2009. [AR 13.] 17 initially and upon reconsideration, plaintiff requested an 18 administrative hearing, which was held on September 22, 2008, before 19 Administrative Law Judge ( ALJ ) Mary L. Eversine. [AR 22-43.] 20 Plaintiff appeared with counsel and testified [AR 24-35]; the ALJ also 21 heard the testimony of vocational expert ( VE ) Elizabeth Cerezo [AR 22 35-41]. 23 [AR 11-18.] 24 the ALJ s decision became the Commissioner s final decision. [AR 1-3.] After the application was denied The ALJ denied benefits in a decision dated October 16, 2008. When the Appeals Council denied review on July 28, 2010, 25 This action followed. 26 IV. 27 28 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the Commissioner s decision to deny benefits. 2 The Commissioner s (or 1 ALJ s) findings and decision should be upheld if they are free of 2 legal error and supported by substantial evidence. 3 court determines that a finding is based on legal error or is not 4 supported by substantial evidence in the record, the court may reject 5 the finding and set aside the decision to deny benefits. 6 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 7 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 8 F.3d 1157, 1162 (9th Cir. 9 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 10 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 11 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 12 However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 13 preponderance. Reddick, 157 F.3d at 720. 14 which a reasonable person might accept as adequate to support a 15 conclusion. 16 a finding, a court must review the administrative record as a whole, 17 weighing both the evidence that supports and the evidence that 18 detracts from the Commissioner s conclusion. 19 can reasonably support either affirming or reversing, the reviewing 20 court may not substitute its judgment for that of the Commissioner. 21 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports V. 22 Id. If the evidence DISCUSSION 23 A. THE FIVE-STEP EVALUATION 24 To be eligible for disability benefits a claimant must 25 demonstrate a medically determinable impairment which prevents the 26 claimant from engaging in substantial gainful activity and which is 27 expected to result in death or to last for a continuous period of at 28 least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 3 1 721; 42 U.S.C. § 423(d)(1)(A). 2 Disability claims are evaluated using a five-step test: 3 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 4 5 6 7 8 9 10 11 12 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 13 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 14 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 15 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 16 not disabled at any step, there is no need to complete further 17 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 18 Claimants have the burden of proof at steps one through four, 19 subject to the presumption that Social Security hearings are non20 adversarial, and to the Commissioner s affirmative duty to assist 21 claimants in fully developing the record even if they are represented 22 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 23 1288. If this burden is met, a prima facie case of disability is 24 made, and the burden shifts to the Commissioner (at step five) to 25 26 27 28 4 1 prove that, considering residual functional capacity ( RFC )1, age, 2 education, and work experience, a claimant can perform other work 3 which is available in significant numbers. 4 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520. Tackett, 180 F.3d at 1098, 5 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 6 Here, the ALJ found that plaintiff had not engaged in substantial 7 gainful activity since August 15, 2005, her alleged disability onset 8 date (step one); that plaintiff had the severe impairments of: 9 chronic PTSD, depressive disorder (not otherwise specified, with 10 anxious features), and panic disorder without agoraphobia (step two); 11 and that plaintiff did not have an impairment or combination of 12 impairments that met or equaled a listing (step three). [AR 13.] 13 Plaintiff was found to have an RFC to perform a full range of work at 14 all exertional levels, but with non-exertional limitations to simple, 15 repetitive tasks which do not require interaction with the general 16 public and which do not have a high production quota. [AR 14.] 17 Based on this RFC, plaintiff was found unable to return to her 18 past relevant work as an attorney (step four). [AR 16.] Based upon the 19 testimony of the VE, however, the ALJ found that a person of 20 plaintiff s age, education, work experience, and RFC could perform 21 work existing in significant numbers in the national economy, such as 22 a janitor or dishwasher (step five). [AR 17.] Accordingly, plaintiff 23 1 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 was found not disabled as defined by the Social Security Act (the 2 Act ). [AR 17-18.] 3 C. 4 The parties Joint Stipulation identifies two disputed issues, 5 ISSUES IN DISPUTE whether the ALJ properly evaluated: 6 1. The opinions of the examining psychologist; and 7 2. Plaintiff s testimony. 8 [JS 3.] The first issue is dispositive.2 9 D. ISSUE ONE: EXAMINING PSYCHOLOGIST Plaintiff first contends the ALJ erred in the RFC assessment 10 11 because the RFC omits moderate mental functioning limitations 12 articulated by consultative psychological examiner Lance Portnoff, 13 Ph.D., whose opinion the ALJ purported to adopt. 14 Dr. Portnoff examined plaintiff on July 8, 2006, interviewing 15 plaintiff and assessing her mental condition by having her complete a 16 series of psychological tests. [AR 172-77.] 17 that plaintiff has the following mental functioning limitations and 18 abilities: 19 ¢ Dr. Portnoff then opined mild restrictions in daily activities, and she does not need 20 assistance or supervision with basic activities of daily living, 21 but has low motivation to groom/bathe/cook due to depressive 22 apathy, but can drive and can manage her money; 23 ¢ mild limitations in maintaining social functioning because of 24 deficiencies in retaining information in verbal memory, social 25 judgment also due to anxious depression, PTSD, and Panic 26 Disorder; 27 2 28 Because issue two does not affect the need for a remand for further proceedings, the court need not reach it. 6 1 ¢ 2 3 measured by psychometrics; ¢ 4 5 no reported history of repeated episodes of emotional deterioration in work-like situations; ¢ 6 7 mild difficulties with concentration, persistence, and pace, as ability to understand, carry out, and remember simple instructions; ¢ moderate limitation in the ability to respond appropriately to 8 co-workers, supervisors, or the public, because of deficiencies 9 in retaining information in memory, attention, processing speed, 10 and in judgment, and because of anxious depression, PTSD, and 11 Panic Disorder; 12 ¢ mild limitations in her ability to respond appropriately to usual 13 or routine work situations, such as attendance and safety because 14 of depressive anergia/apathy; 15 ¢ moderate limitations in her ability to deal with unexpected 16 changes in a routine work setting, because of deficiencies in 17 judgment and because of anxious depression, PTSD, and Panic 18 disorder. 19 20 [AR 176.] The RFC assessment of state-agency reviewing physician H.N. 21 Hurwitz, M.D., comports with Dr. Portnoff s for the most part; 22 however, Dr. Hurwiz s assessment concludes that plaintiff can, in 23 fact, relate adequately with coworkers and supervisors, but not with 24 the public. [AR 180.] 25 limitation in plaintiff s ability to deal with unexpected changes that 26 was opined by Dr. Portnoff. [AR 179.] 27 28 Furthermore, Dr. Hurwitz omitted the moderate Notwithstanding these inconsistencies, in the hearing decision the ALJ stated that she would credit both the State agency (Exhibit 7 1 3F) and the consultative examiner (Exhibit 2F) (emphasis added) based 2 on supportability with medical signs and laboratory findings; 3 consistency with the record; and area of specialization. [AR 16.] 4 The RFC, furthermore, adopts only those limitations opined by Dr. 5 Hurwiz, omitting the two moderate limitations found by Dr. Portnoff 6 and mentioned above. [See AR 14, 176.] 7 effectively rejects Dr. Portnoff s opinion in favor of the less 8 restrictive opinion of the non-examining state-agency reviewing 9 physician.3 10 In so doing, the ALJ This is in error. The opinion of a non-examining physician, by itself, does not 11 provide substantial evidence to justify rejection of the opinion of 12 either a treating or examining physician. Lester v. Chater, 81 F.3d 13 821, 831 (9th Cir. 1995). It is error for an ALJ to neither explicitly 14 reject the opinion of an examining physician nor set forth specific, 15 legitimate reasons for crediting a non-examining medical advisor over 16 an examining physician. 17 1996). Nguyen v. Chater, 100 F.3d 1462 (9th Cir. 18 Accordingly, reversal is required on this issue. 19 E. 20 The decision whether to remand for further proceedings is within REMAND FOR FURTHER PROCEEDINGS Harman v. Apfel, 211 F.3d 1172, 21 the discretion of the district court. 22 1175-1178 (9th Cir. 2000). 23 further proceedings, or where the record has been fully developed, it 24 is appropriate to exercise this discretion to direct an immediate 25 award of benefits. Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to 26 3 27 28 In making these findings, the ALJ specifically declined to credit more significant restrictions opined by plaintiff s treating psychiatrist, Celia Woods, M.D. [see AR 310]; plaintiff does not challenge that aspect of the decision here. [See JS.] 8 1 remand for further proceedings turns upon their likely utility). 2 However, where there are outstanding issues that must be resolved 3 before a determination can be made, and it is not clear from the 4 record that the ALJ would be required to find the claimant disabled if 5 all the evidence were properly evaluated, remand is appropriate. 6 Id. Here, the ALJ erred in assessing Dr. Portnoff s opinion and did 7 not present a hypothetical to the VE that included all of the 8 limitations Dr. Portnoff found. 9 before a determination can be made, and remand for further Thus, outstanding issues remain 10 administrative proceedings is appropriate. 11 Comm r of Soc. Sec. Admin., 635 F.3d 1135, 1136 (9th Cir. 2011) 12 (remand for automatic payment of benefits inappropriate unless 13 evidence unequivocally establishes disability). VI. 14 See e.g., Strauss v. ORDERS 15 Accordingly, IT IS ORDERED that: 16 1. The decision of the Commissioner is REVERSED. 17 2. This action is REMANDED to defendant, pursuant to Sentence 18 Four of 42 U.S.C. §405(g), for further administrative proceedings 19 consistent with the decision. 20 21 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 22 23 24 25 DATED: June 13, 2011 _______________________________ CARLA M. WOEHRLE United States Magistrate Judge 26 27 28 9

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