Edward Collard v. Michael J Astrue, No. 2:2012cv06085 - Document 15 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. (ec)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 EDWARD COLLARD, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,1 ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ___________________________________) NO. CV 12-06085-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on July 17, 2012, seeking review of the 19 denial of plaintiff s application for a period of disability, disability 20 insurance benefits ( DIB ), and supplemental security income 21 ( SSI ). On August 20, 2012, the parties consented, pursuant to 28 U.S.C. § 636(c), 22 to proceed before the undersigned United States 23 Magistrate Judge. The parties filed a Joint Stipulation on April 3, 24 2013, in which: plaintiff seeks an order reversing the Commissioner s 25 26 27 28 1 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013, and is substituted in place of former Commissioner Michael J. Astrue as the defendant in this action. (See Fed. R. Civ. P. 25(d).) 1 decision and remanding this case for the payment of benefits or, 2 alternatively, 3 Commissioner requests that his decision be affirmed or, alternatively, 4 remanded for further administrative proceedings. for further administrative proceedings; and the 5 6 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 7 8 9 Plaintiff filed an application for a period of disability, DIB, and SSI on July 24, 2009. (Administrative Record ( A.R. ) 19.) Plaintiff 10 claims to have been disabled since July 30, 2008 (A.R. 23), due to low 11 energy, back pain, liver problems, lightheadedness, colon surgery, 12 depression, and HIV (A.R. 83). 13 experience as a graphics designer, forms analyst, and administrative 14 assistant. Plaintiff has past relevant work (A.R. 29.) 15 16 After the Commissioner denied plaintiff s claims initially (A.R. 17 83-89), plaintiff requested a hearing (A.R. 92-93). 18 2010, plaintiff, who was represented by counsel, appeared and testified 19 at a hearing before Administrative Law Judge Alexander Weir, III (the 20 ALJ ). 21 (Id.) 22 30), and the Appeals Council subsequently denied plaintiff s request for 23 review of the ALJ s decision (A.R. 1-4). 24 in this action. (A.R. 41-76.) On September 30, Vocational expert Susan Green also testified. On December 2, 2010, the ALJ denied plaintiff s claim (A.R. 19- That decision is now at issue 25 26 SUMMARY OF ADMINISTRATIVE DECISION 27 28 The ALJ found that plaintiff meets the insured status requirements 2 1 of the Social Security Act through September 30, 2011, and has not 2 engaged in substantial gainful activity since July 30, 2008, the alleged 3 onset date of his disability. 4 plaintiff has the severe impairments of HIV positive infection and 5 chronic Hepatitis C. (Id.) The ALJ also determined that plaintiff has 6 a 7 impairments are not severe. 8 does not have an impairment or combination of impairments that meets or 9 medically equals one of the listed impairments in 20 C.F.R. Part 404, 10 Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 11 416.920(d), 416.925, and 416.926). history of mental (A.R. 23.) depression and (Id.) The ALJ determined that drug dependence, but these The ALJ concluded that plaintiff (A.R. 25.) 12 13 After reviewing the record, the ALJ determined that plaintiff has 14 the residual functional capacity ( RFC ) to perform a full range of 15 light work as defined in 20 C.F.R. [§§] 404.1567(a), (b) and 416.967(a), 16 (b). 17 can: 18 stand and walk for 6 hours and sit for 6 hours in an 8 hour day, with 19 normal breaks ; and push and pull commensurate with his lifting ability 20 without significant limitation. (A.R. 27.) Specifically, the ALJ found that plaintiff lift and carry 20 pounds occasionally and 10 pounds frequently ; (Id.) 21 22 The ALJ found that plaintiff could perform his part relevant work 23 as a graphics designer, forms analyst, and administrative assistant, 24 because that work does not require the performance of work-related 25 activities precluded by his RFC. 26 concluded that plaintiff has not been under a disability, as defined in 27 the Social Security Act, from July 30, 2008, through the date of the 28 ALJ s decision. (A.R. 29.) (Id.) 3 Accordingly, the ALJ 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 4 decision to determine whether it is free from legal error and supported 5 by substantial evidence in the record as a whole. 6 F.3d 625, 630 (9th Cir. 2007). 7 evidence as a reasonable mind might accept as adequate to support a 8 conclusion. 9 a mere scintilla but not necessarily a preponderance. Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. 10 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 11 record can constitute substantial evidence, only those reasonably drawn 12 from the record will suffice. 13 1066 (9th Cir. 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 1063, 14 15 Although this Court cannot substitute its discretion for that of 16 the Commissioner, the Court nonetheless must review the record as a 17 whole, weighing both the evidence that supports and the evidence that 18 detracts from the [Commissioner s] conclusion. 19 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 20 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 21 responsible for determining credibility, resolving conflicts in medical 22 testimony, and for resolving ambiguities. 23 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 24 25 The Court will uphold the Commissioner s decision when the evidence 26 is susceptible to more than one rational interpretation. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 review only the reasons stated by the ALJ in his decision and may not 4 Burch v. However, the Court may 1 affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d 2 at 630; see also Connett, 340 F.3d at 874. 3 the Commissioner s decision if it is based on harmless error, which 4 exists only when it is clear from the record that an ALJ s error was 5 inconsequential to the ultimate nondisability determination. Robbins 6 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 7 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 8 at 679. The Court will not reverse 9 10 DISCUSSION 11 12 Plaintiff claims the ALJ failed to consider properly the opinion of 13 plaintiff s treating physician Charles Huynh, D.O. and State agency 14 consultative 15 correctly assess plaintiff s RFC or his ability to perform his past 16 relevant work. psychiatrist R. E. Brooks, M.D. and, thus, did not (Joint Stipulation ( Joint Stip. ) at 3-8, 11-12.) 17 18 I. After Properly Considering The Opinions Of Plaintiff s 19 Treating Physician And The State Agency Physician, The 20 ALJ Needs To Reassess Plaintiff s RFC On Remand. 21 22 It is the responsibility of the ALJ to analyze evidence and resolve 23 conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 24 (9th Cir. 1989). 25 assessing a social security claim, [g]enerally, a treating physician s 26 opinion carries more weight than an examining physician s, and an 27 examining physician s opinion carries more weight than a reviewing 28 physician s. In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 5 1 2001); 20 C.F.R. §§ 404.1527(d), 416.927(d). 2 3 The opinions of treating physicians are entitled to the greatest 4 weight, because the treating physician is hired to cure and has a better 5 opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When 6 a treating physician s opinion is not contradicted by another physician, 7 it may be rejected only for clear and convincing reasons. 8 Chater, 81 F.3d 821, 830 (9th Cir. 1995). 9 doctor, a treating physician s opinion may only be rejected if the ALJ 10 provides specific and legitimate reasons supported by substantial 11 evidence in the record. Lester v. When contradicted by another Id. 12 13 The opinion of a nonexamining physician cannot by itself 14 constitute substantial evidence that justifies the rejection of the 15 opinion of . . . a treating physician. 16 Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)(finding that 17 the 18 constitute substantial evidence). 19 claimant s treating physician is contradicted, and the opinion of a 20 nontreating source is based on independent clinical findings that differ 21 from those of the treating physician, the opinion of the nontreating 22 source may itself be substantial evidence. nonexamining physician s opinion Lester, 81 F.3d at 831; see with nothing more did not However, [w]here the opinion of the Andrews, 53 F.3d at 1041. 23 24 In determining a claimant s RFC, an ALJ will consider all the 25 relevant evidence 26 416.945(a)(1). 27 medically 28 severe. in the record. 20 C.F.R. §§ 404.1545(a)(1), In so doing, the ALJ will consider all claimant s determinable impairments, including those 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). 6 that are not The ALJ also 1 will consider any statement about what [the claimant] can still do that 2 have been provided by medical sources. 3 416.945(a)(3). 20 C.F.R. §§ 404.1545(a)(3), 4 5 A. Dr. Huynh 6 7 On September 30, 2009, plaintiff s treating physician, Dr. Huynh, 8 opined that, in a 40 hour workweek with normal breaks, plaintiff could: 9 lift/carry 20 pounds occasionally and (A.R. 225.) 10 pounds frequently; and 10 stand/walk for 2-4 hours. Dr. Hunyh described plaintiff s 11 functional level as easily tired, frustrated[,] but wants to work, 12 and Dr. Hunyh indicated that plaintiff appeared to be visibly fatigued 13 as a result of his HIV and Hepatitis C. (Id.) 14 15 As noted supra, the ALJ determined that plaintiff has the RFC to 16 perform a full range of light work. 17 that plaintiff could: 18 pounds frequently ; and stand and walk for 6 hours and sit for 6 hours 19 in an 8 hour day, with normal breaks. 20 ALJ 21 consistent with the opinion of [plaintiff s] treating physician. (A.R. 22 28.) noted that his As relevant here, the ALJ found lift and carry 20 pounds occasionally and 10 RFC assessment (A.R. 27.) for In so finding, the plaintiff was generally 23 24 As plaintiff is properly consistent notes, with Dr. however, the lifting ALJ s and RFC 25 assessment 26 limitations, the ALJ s RFC s assessment is not consistent with Dr. 27 Hunyh s standing and walking limitations. Specifically, contrary to the 28 ALJ, Dr. Huynh found plaintiff only to be capable of standing and 7 Huynh s while carrying 1 walking 2-4 hours in an 8 hour day. 2 accept the full extent of Dr. Huynh s opinion, the ALJ may not reject 3 it, 4 legitimate reasons for so doing. 5 reason,2 let alone an appropriate reason, for rejecting Dr. Huynh s 6 opinion constitutes error. or significant parts of (A.R. 225.) it, without While the ALJ need not providing specific and The ALJ s failure to proffer any 7 8 The ALJ s error, however, appears to be harmless. Notably, 9 plaintiff s past relevant work is sedentary and, thus, does not require 10 plaintiff to stand and/or walk for more than 2 hours in an 8 hour day. 11 See SSR 83-10 (defining sedentary work as requiring standing and walking 12 occasionally which in turn is defined as periods of . . . no more 13 than 2 hours of an 8-hour workday ). 14 regarding plaintiff s standing and walking is inconsistent with the 15 ALJ s RFC assessment for plaintiff, it is not inconsistent with the 16 ALJ s ultimate determination that plaintiff can perform his prior 17 sedentary jobs. 18 for the reason set forth infra, the ALJ should properly consider the 19 opinion of Dr. Huynh on remand. Thus, while Dr. Huynh s opinion Nevertheless, because this case needs to be remanded 20 21 B. Dr. Brooks 22 23 In an October 30, 2009 Psychiatric Review Technique ( PRT ) form, 24 State Agency physician R. E. Brooks, M.D. diagnosed plaintiff with an 25 2 26 27 28 Although the Commissioner now offers other reasons to explain the ALJ s rejection of the opinion of Dr. Ahmed, the Court cannot entertain these post hoc rationalizations. See, e.g., Orn, 495 F.3d at 630 ( We review only the reasons provided by the ALJ in the disability determination and may not affirm on a ground upon which he did not rely ). 8 1 affective disorder. (A.R. 374.) Dr. Brooks opined that plaintiff would 2 have: 3 difficulties 4 difficulties in maintaining concentration, persistence, or pace. 5 382.) 6 noted that plaintiff s first documented psych treatment [wa]s 10/09 and 7 [plaintiff s] medication started [on that date]. 8 [(treating physician)] guesses that [plaintiff s condition] will change 9 little in the next 12-18 months there is no way of knowing based on one moderate restrictions in activities of daily living; marked in maintaining social functioning; and moderate (A.R. In the Consultant s Notes section of the PRT form, Dr. Brooks without any records or other 10 meeting 11 [plaintiff] will respond. 12 notes and only a MDQF[, Dr. Brooks] deemed [plaintiff s condition] to be 13 improved within 12 months to perform simple work. (A.R. 384.) treatment Although the TP to know how fast Accordingly, without progress (Id.) 14 15 In a Mental Residual Functional Capacity Assessment completed that 16 same day, Dr. Brooks opined that plaintiff would be: moderately limited 17 in 18 instructions; markedly limited in his ability to interact appropriately 19 with the general public; and moderately limited in his ability to 20 respond appropriately to changes in the work setting. 21 Dr. Brooks noted, however, that plaintiff s condition would be markedly 22 improved within 12 months. (A.R. 387.) his ability to understand, remember, and carry out detailed (A.R. 385-86.) 23 24 After summarizing, inter alia, the opinion of Dr. Brooks, the ALJ 25 concluded that [plaintiff] s 26 limitations in his daily living activities, mild limitations in his 27 social functioning 28 concentration, persistence and pace. and no mental limitations 9 impairments in his (A.R. 25.) provide ability to mild maintain Accordingly, the ALJ 1 concluded 2 severe. that plaintiff s mental impairments [we]re not (Id.) 3 4 As plaintiff properly notes, the ALJ failed to provide any reason, 5 let alone an appropriate reason, for rejecting the more restrictive 6 opinion of Dr. Brooks. 7 plaintiff s condition would improve considerably within 12 months, Dr. 8 Brooks still opined that plaintiff should be limited to simple work -- 9 a limitation which was not included in the ALJ s RFC assessment for While it is true that Dr. Brooks opined that 10 plaintiff. Indeed, the ALJ did not even include his own findings of 11 mild mental limitations in assessing plaintiff s RFC. 12 error. This constitutes 13 14 Moreover, the ALJ s error is not harmless. Significantly, a 15 limitation to simple work would appear to preclude plaintiff from 16 performing his past relevant work, which involved a reasoning level of 17 either 4 or 5. 18 2008)(finding that reasoning level one and two are commensurate with a 19 limitation to simple, repetitive tasks); Johnson v. Astrue, 2011 U.S. 20 Dist. LEXIS 65233, at *22 n.5 (C.D. Cal. June 7, 2011)(finding that a 21 level four reasoning level was incompatible with a limitation to simple 22 repetitive tasks). See Lara v. Astrue, 305 Fed. App x 324, 325 (9th Cir. Accordingly, reversal and remand are appropriate. 23 24 II. Remand Is Required. 25 26 The decision whether to remand for further proceedings or order an 27 immediate award of benefits is within the district court s discretion. 28 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 10 Where no 1 useful purpose would be served by further administrative proceedings, or 2 where the record has been fully developed, it is appropriate to exercise 3 this discretion to direct an immediate award of benefits. 4 ( [T]he decision of whether to remand for further proceedings turns upon 5 the likely utility of such proceedings. ). 6 outstanding issues that must be resolved before a determination of 7 disability can be made, and it is not clear from the record that the ALJ 8 would be required to find the claimant disabled if all the evidence were 9 properly evaluated, remand is appropriate. Id. at 1179 However, where there are Id. at 1179-81. 10 11 Remand is the appropriate remedy in this case to allow the ALJ the 12 opportunity to remedy the above-mentioned deficiencies and errors. 13 remand, the ALJ must credit the opinions Dr. Huynh and Dr. Brooks or 14 provide 15 rejecting 16 plaintiff s RFC, in which case additional testimony from a vocational 17 expert will be needed to determine what work, if any, plaintiff can 18 perform. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// appropriate them. reasons After supported doing so, 11 by the substantial ALJ may need evidence to On for reassess 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: May 1, 2013 14 15 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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