Anthony Nett v. Michael J Astrue, No. 5:2010cv01868 - Document 16 (C.D. Cal. 2011)

Court Description: ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Magistrate Judge Robert N. Block. IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security, and remanding this matter for further administrative proceedings. (twdb)

Download PDF
o 1 2 FILED CLERK, U.S.D.C. SOUTHERN DIVISION 3 AUG 242011 4 5 fi CALIFORNIA ¢ ---~ '"' DEPUTY 6 7 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 10 11 ANTHONY NETT, 12 Case No. EDCV 10-1868 RNB Plaintiff, 13 vs. 14 MICHAEL J. ASTRUE Commissioner of Social Security, 15 16 ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS Defendant. -----------) 17 18 19 The Court now rules as follows with respect to the three disputed issues listed in the Joint Stipulation.) 20 Disputed Issue Nos. 1 and 2 both are directed to the determination by the 21 Administrative Law Judge (~ALJ") of plaintiffs residual functional capacity 22 ("RFC"). The Court will address Disputed Issue No.2 first. 23 24 25 26 27 28 As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the administrative record ("AR"), and the Joint Stipulation ("Jt Stip") filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 1 1 As a preliminary matter, the Court notes that a treating physician may render 2 an opinion on the ultimate issue of disability. See Reddick v. Chater, 157 F.3d 715, 3 725 (9th Cir. 1998) ("In disability benefits cases such as this, physicians may render 4 medical, clinical opinions, or they may render opinions on the ultimate issue of 5 disability - the claimant's ability to perform work.... A treating physician's opinion 6 on disability, even if controverted, can be rejected only with specific and legitimate 7 reasons supported by substantial evidence in the record. . ., In sum, reasons for 8 rejecting a treating doctor's credible opinion on disability are comparable to those 9 required for rejecting a treating doctor's medical opinion."); Embrey v. Bowen, 849 10 F.2d 418, 421-22 (9th Cir. 1988) (finding that ALI had failed to give sufficiently 11 specific reasons for rejecting the conclusion of plaintiff s treating orthopedist that 12 plaintiff was "permanently disabled from his medical condition as well as his 13 orthopaedic problems"). To the extent that the Commissioner has cited the 14 unpublished panel decision in Martinez v. Astrue, 261 Fed. App'x 33, 35 (9th Cir. 15 2007) for a contrary proposition, the Court notes that Martinez has no precedential 16 value and finds that it has no persuasive value in light of Reddick and Embrey. See 17 Ninth Circuit Rule 36-3. 18 The Court therefore rejects the Commissioner's contention that Dr. Lasala's 19 opinion regarding plaintiffs ability to work was a matter reserved to the 20 Commissioner because (a) although that was one ofthe reasons provided by the ALI 21 for rejecting Dr. Melzer's opinions, it was not one ofthe reasons provided by the ALI 22 for rejecting Dr. Lasala's opinions, and the Court consequently is unable to consider 23 it (see Connett v. Barnhart, 340 F.3d 871,874 (9th Cir. 2003); Ceguerra v. Sec'y of 24 Health & Human Svcs., 933 F.2d 735, 738 (9th Cir. 1991) ("A reviewing court can 25 evaluate an agency's decision only on the grounds articulated by the agency.")); and 26 (b) even if the ALI had provided that reason for rejecting Dr. Lasala's opinions, it 27 would not have been a legitimate reason under Reddick and Embrey. 28 Further, the Court finds that the Commissioner's reliance on Social Security 2 1 Ruling ("SSR") 96-2p is misplaced. The factors cited in SSR 96-2p merely go to the 2 issue ofwhether a treating source's opinion is entitled to controlling weight. The fact 3 that Dr. Lasala's opinions were not entitled to controlling weight begs the question 4 ofwhether the ALJ provided the requisite specific and legitimate reasons for rejecting 5 those opinions. 6 Nevertheless, the Court finds that reversal is not warranted based on the ALl's 7 alleged failure to properly consider the opinions regarding plaintiffs inability to work 8 that are reflected on the Work Capacity Evaluation form completed by Dr. Lasala on 9 September 11, 2009 (AR 234-35) and on the "Medical Source Statement" signed by 10 Dr. Lasala on March 19,2010 (AR 229). The Court concurs with the ALJ that those 11 opinions were inconsistent with Dr. Lasala's earlier treatment notes that assessed 12 plaintiffs affect, memory, intellectual functioning, cognition, orientation, and 13 thinking as being intact. The Court also concurs with the ALJ that Dr. Lasala's 14 opinions on the Work Capacity Evaluation form were not supported by Dr. Lasala's 15 treatment records or any of plaintiffs other treating physicians' treatment records. 16 The law is well established in this Circuit that the Commissioner need not accept a 17 treating physician's opinion that is brief, conclusory, and inadequately supported by 18 clinical findings. See, e.g., Batson v. Commissioner of Social Security 19 Administration, 359 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 20 947,957 (9th Cir. 2002); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); 21 see also Crane v. Shalala, 76 F.3d 251,253 (9th Cir. 1996) (holding that an ALJ may 22 reject check-off forms that do not contain an explanation of the bases for their 23 conclusions); Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) (holding that 24 contradiction between doctor's treatment notes and finding of disability was valid 25 reason to reject treating physician's opinion). 26 With respect to Disputed Issue No.1, the Commissioner appears to implicitly 27 concede that a limitation to simple one to two step tasks is a more severe limitation 28 than that found by the ALJ, when he only limited plaintiff to "unskilled work." The 3 1 Court therefore concurs with plaintiff that the ALI erred in his RFC determination 2 because he failed to explain why he implicitly rejected the opinion ofDr. Loomis, one 3 of the State agency physicians, that plaintiffs mental impairment limited him to 4 "understanding, remembering and carrying out simple one to two step tasks." (See 5 AR 175; see also AR 188.) The Commissioner's Regulations provide that, although 6 ALls "are not bound by any findings made by [nonexamining] State agency medical 7 or psychological consultants, or other program physicians or psychologists," ALls 8 must still "consider [their] findings and other opinions ... as opinion evidence, except 9 for the ultimate determination about whether [a claimant is] disabled," because such 10 specialists are regarded as "highly qualified ... experts in Social Security disability 11 evaluation." See 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i). The Regulations 12 further provide that "[u]nless a treating source's opinion is given controlling weight, 13 the [ALI] must explain in the decision the weight given to the opinions of a State 14 agency medical or psychological consultant or other program physician, psychologist, 15 or other medical specialist." See 20 C.F.R. §§ 404.1527(f)(2)(ii), 416.927(f)(2) (ii); 16 see also SSR 96-6p ("Findings ... made by State agency medical and psychological 17 consultants ... regarding the nature and severity ofan individual's impairment(s) must 18 be treated as expert opinion evidence ofnonexamining sources," and ALIs "may not 19 ignore these opinions and must explain the weight given to these opinions in their 20 decisions.").2 Here, in excluding from his RFC determination Dr. Loomis's opinion 21 that plaintiffs mental impairment limited him to performing simple one to two step 22 tasks, the ALI implicitly rejected that opinion without providing any reason for doing 23 so. This constitutes error. See 20 C.F.R. §§ 404.1527(f)(2), 416.927(f)(2); SSR 24 96-8p, at *7 ("The RFC assessment must always consider and address medical source 25 opinions. Ifthe RFC assessment conflicts with an opinion from a medical source, the 26 27 28 2 Social Security Rulings are binding on ALls. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 4 1 adjudicator must explain why the opinion was not adopted.").3 2 Moreover, the Court is unable to find that the ALI's error in this regard was 3 harmless or to affirm the ALI's vocational determination, which the ALJ made 4 without the benefit of vocational expert testimony (i.e., Disputed Issue No.3). 5 According to the Dictionary of Occupational Titles, all the examples ofjobs cited by 6 the ALJ required a reasoning level of two. (See AR 16.) Thus, ifplaintiffs mental 7 impairment limited him to performing one to two step tasks, he would not be capable 8 ofperforming thosejobs. See Reaza v. Astrue, 2011 WL999181, *4 (C.D. Cal. Mar. 9 21. 2011) ("Plaintiffs limitation to simple one and two part instructions is consistent 10 with a reasoning level of'one."'); Grigsbyv. Astrue, 2010 WL 309013, *2 (C.D. Cal. 11 Jan. 22, 2010) (explaining that a limitation to simple repetitive work would allow for 12 the ability to perform jobs at Reasoning Level 2, as defined by the DOT, but that a 13 further limitation to one- or two-step instructions limited the individual to Reasoning 14 Levell jobs); see also Coleman v. Astrue, 2011 WL 781930, *5 (C.D. Cal. Feb. 28, 15 2011) (following Grigsby); Diazv. Astrue, 2010 WL 5313504, *2-*3 (C.D. Cal. Dec. 16 20,2010) (same); Navarro v. Astrue, 2010 WL 5313439, *5 (C.D. Cal. Dec. 16, 17 2010) (same). 18 II 19 II 20 21 22 23 24 25 26 27 28 3 The Court also concurs with plaintiffthat, by not incorporating into his RFC assessment any limitation on plaintiffs ability to interact appropriately with the general public, the ALJ was implicitly rejecting the opinion of Dr. Loomis that plaintiff was moderately impaired in that area of functioning, and therefore might have difficulty dealing with the demands ofgeneral public contact. (See AR 174-75, 188.) Although the ALJ purported to provide reasons for why he rejected the consultative examiner's opinion that plaintiffwas markedly impaired in the ability to relate and interact with coworkers and the public (see AR 13, 172), the ALJ did not purport to provide any reasons for rejecting Dr. Loomis's opinion that plaintiffs was moderately impaired in the ability to interact appropriately with the general public. This also was error under the authorities cited above. 5 1 2 ORDER The law is well established that the decision whether to remand for further 3 proceedings or simply to award benefits is within the discretion of the Court. See, 4 ~,Salvador 5 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631,635 (9th Cir. 6 1981). Remand is warranted where additional administrative proceedings could 7 remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th 8 Cir. 1984); Lewin, supra. v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 9 This is not an instance where no useful purpose would be served by further 10 administrative proceedings, or where the record has been fully developed. 11 Accordingly, pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY 12 ORDERED that Judgment be entered reversing the decision ofthe Commissioner of 13 Social Security, and remanding this matter for further administrative proceedings. 14 15 DATED: August 23, 2011 16 17 18 ROBERT N. BLOCK UNITED STATES MAGISTRATE mDGE 19 20 21 22 23 24 25 26 27 28 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.