Danny Cook v. Michael J Astrue, No. 5:2011cv00029 - Document 19 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. See memorandum for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DANNY COOK, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. __________________________ ) Case No. EDCV 11-29 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 I. On January 13, 2011, plaintiff Danny Cook ( plaintiff ) filed a Complaint 20 21 22 23 seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; January 18, 2011 Case Management Order ¶ 5. /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand because the 4 Administrative Law Judge ( ALJ ) failed properly to consider significant 5 probative medical opinion evidence. 6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 7 DECISION 8 On January 19, 2006, plaintiff filed an application for Supplemental 9 Security Income benefits. (Administrative Record ( AR ) 32, 75). Plaintiff 10 asserted that he became disabled on March 31, 1991, due to seizures, a missing 11 right eye and part of left shoulder, headaches, and gun shot in the head. (AR 86). 12 The ALJ examined the medical record and heard testimony from plaintiff (who 13 was represented by counsel) and a vocational expert on November 3, 2006 ( Pre14 Remand Hearing ). (AR 7-26). 15 On November 29, 2007, the ALJ determined that plaintiff was not disabled 16 through the date of the decision ( Pre-Remand Decision ). (AR 32-39, 209). The 17 Appeals Council denied plaintiff s application for review of the ALJ s Pre18 Remand Decision. (AR 209). 19 On August 26, 2009, in Case No. EDCV 08-259 JC, a judgment was entered 20 in the United States District Court for the Central District of California, reversing 21 and remanding the case for further proceedings because the ALJ failed adequately 22 to develop the record with respect to plaintiff s treating physician. (AR 220-32). 23 The Social Security Administration, in turn, remanded the case for a new hearing. 24 (AR 234). On May 18, 2010, the ALJ held a post-remand hearing ( Post-Remand 25 Hearing ) during which the ALJ heard testimony from plaintiff (who was 26 /// 27 /// 28 /// 2 1 represented by counsel), a medical expert, and plaintiff s girlfriend.1 (AR 409-46). 2 At the end of the Post-Remand Hearing, the ALJ granted plaintiff s request for a 3 consultative psychological examination.2 (AR 443). 4 On October 19, 2010, the ALJ issued his decision, incorporating by 5 reference the Pre-Remand Decision, and supplementing such decision ( Post6 Remand Decision ). (AR 188-96). Specifically, the ALJ found: (1) plaintiff 7 suffered from the following severe impairments: history of gunshot wound to the 8 left shoulder and head with blindness in the right eye, seizure disorder, and 9 dysthymic disorder (AR 190); (2) plaintiff s impairments, considered singly or in 10 combination, did not meet or medically equal one of the listed impairments (AR 11 190-91); (3) plaintiff retained the residual functional capacity to perform light 12 work (20 C.F.R. § 416.967(b)) with certain limitations3 (AR 191); (4) plaintiff has 13 no past relevant work (AR 194); (5) there are jobs that exist in significant numbers 14 in the national economy that plaintiff could perform, specifically cleaner in 15 housekeeping, inspector/hand packager, and cashier (AR 194-95); and 16 (6) plaintiff s allegations regarding his limitations were not credible to the extent 17 18 19 20 21 22 23 24 25 26 27 28 1 Although the transcript of the Post-Remand Hearing indicates that Corinne Porter, a vocational expert, appeared (AR 409), the transcript does not contain any testimony from such vocational expert. (AR 410-46). 2 Where it is necessary to enable the ALJ to resolve an issue of disability, the duty to develop the record may require consulting a medical expert or ordering a consultative examination. See 20 C.F.R. § 416.919a; see, e.g., Armstrong v. Commissioner of Social Security Administration, 160 F.3d 587, 590 (9th Cir. 1998) (where there were diagnoses of mental disorders prior to the date of disability found by the ALJ, and evidence of those disorders even prior to the diagnoses, the ALJ was required to call a medical expert to assist in determining when the plaintiff s impairments became disabling). 3 The ALJ determined that plaintiff could perform light work, but: (i) would be limited to simple repetitive tasks; (ii) would miss work one to two times per month; (iii) could only occasionally use his left arm; (iv) could not fully extend his left arm above his head; and (v) could see only from the left eye. (AR 191). 3 1 they were inconsistent with the ALJ s residual functional capacity assessment (AR 2 192). 3 III. APPLICABLE LEGAL STANDARDS 4 A. 5 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 6 unable to engage in any substantial gainful activity by reason of a medically 7 determinable physical or mental impairment which can be expected to result in 8 death or which has lasted or can be expected to last for a continuous period of at 9 least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 10 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of 11 performing the work claimant previously performed and incapable of performing 12 any other substantial gainful employment that exists in the national economy. 13 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. 14 § 423(d)(2)(A)). 15 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 16 sequential evaluation process: 17 (1) 18 19 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 20 claimant s ability to work? If not, the claimant is not disabled. 21 If so, proceed to step three. 22 (3) Does the claimant s impairment, or combination of 23 impairments, meet or equal an impairment listed in 20 C.F.R. 24 Part 404, Subpart P, Appendix 1? If so, the claimant is 25 disabled. If not, proceed to step four. 26 (4) Does the claimant possess the residual functional capacity to 27 perform claimant s past relevant work? If so, the claimant is 28 not disabled. If not, proceed to step five. 4 1 (5) Does the claimant s residual functional capacity, when 2 considered with the claimant s age, education, and work 3 experience, allow claimant to adjust to other work that exists in 4 significant numbers in the national economy? If so, the 5 claimant is not disabled. If not, the claimant is disabled. 6 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 7 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 8 The claimant has the burden of proof at steps one through four, and the 9 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 10 F.3d 949, 954 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 11 (claimant carries initial burden of proving disability). 12 B. 13 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 14 benefits only if it is not supported by substantial evidence or if it is based on legal 15 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 16 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 17 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 18 mind might accept as adequate to support a conclusion. Richardson v. Perales, 19 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 20 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 21 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 22 To determine whether substantial evidence supports a finding, a court must 23 consider the record as a whole, weighing both evidence that supports and 24 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 25 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 26 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 27 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 28 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 5 1 IV. DISCUSSION 2 Plaintiff contends that a reversal or remand is warranted because the ALJ 3 failed properly to consider the opinions of Dr. Mark D. Pierce, a consultative 4 examining psychologist. (Plaintiff s Motion at 5-6) (citing AR 403). As 5 discussed in detail below, the Court agrees. As the Court cannot find that the 6 ALJ s error was harmless, a remand is warranted. 7 A. 8 In Social Security cases, courts employ a hierarchy of deference to medical Pertinent Law 9 opinions depending on the nature of the services provided. Courts distinguish 10 among the opinions of three types of physicians: those who treat the claimant 11 ( treating physicians ) and two categories of nontreating physicians, namely 12 those who examine but do not treat the claimant ( examining physicians ) and 13 those who neither examine nor treat the claimant ( nonexamining physicians ). 14 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A 15 treating physician s opinion is entitled to more weight than an examining 16 physician s opinion, and an examining physician s opinion is entitled to more 17 weight than a nonexamining physician s opinion.4 See id. In general, the opinion 18 of a treating physician is entitled to greater weight than that of a non-treating 19 physician because the treating physician is employed to cure and has a greater 20 opportunity to know and observe the patient as an individual. Morgan v. 21 Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 22 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 23 The treating physician s opinion is not, however, necessarily conclusive as 24 to either a physical condition or the ultimate issue of disability. Magallanes v. 25 26 27 28 4 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to draw bright line distinguishing treating physicians from non-treating physicians; relationship is better viewed as series of points on a continuum reflecting the duration of the treatment relationship and frequency and nature of the contact) (citation omitted). 6 1 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 2 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician s opinion is not 3 contradicted by another doctor, it may be rejected only for clear and convincing 4 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 5 quotations omitted). The ALJ can reject the opinion of a treating physician in 6 favor of a conflicting opinion of another examining physician if the ALJ makes 7 findings setting forth specific, legitimate reasons for doing so that are based on 8 substantial evidence in the record. Id. (citation and internal quotations omitted); 9 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by 10 setting out detailed and thorough summary of facts and conflicting clinical 11 evidence, stating his interpretation thereof, and making findings) (citations and 12 quotations omitted); Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite 13 magic words to reject a treating physician opinion court may draw specific 14 and legitimate inferences from ALJ s opinion). The ALJ must do more than offer 15 his conclusions. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). He 16 must set forth his own interpretations and explain why they, rather than the 17 [physician s], are correct. Id. Broad and vague reasons for rejecting the 18 treating physician s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 19 602 (9th Cir. 1989). These standards also apply to opinions of examining 20 physicians. See Andrews v. Shalala, 53 F.3d 1035, 1042-44 (9th Cir. 1995). 21 B. 22 On June 23, 2010, Dr. Mark Pierce, a state agency psychologist, conducted Pertinent Facts 23 a psychological evaluation of plaintiff which included a mental status evaluation 24 and objective psychological testing.5 (AR 398-407). Based on his examination of 25 plaintiff, a review of plaintiff s medical records, and the results of the objective 26 27 28 5 Dr. Pierce administered the following tests: Wechsler Adult Intelligence Scale-III; Wechsler Memory Scale-III; Test of Malingered Memory; Minnesota Multiphasic Personality Inventory Second Edition (MMPI-II). (AR 398). 7 1 testing, Dr. Pierce opined, in pertinent part, that plaintiff (i) did not appear to 2 perform to his full capabilities during objective testing; (ii) could complete 3 simple and repetitive vocational skills; (iii) could adapt to minimal changes in a 4 work environment; (iv) may show potential difficulty working effectively with 5 others ; (v) could remember and comply with simple one and two part 6 instructions; and (vi) might be able to concentrate adequately for a regular work 7 schedule during a full work week. (AR 403). 8 In the Post-Remand Decision, the ALJ noted the following regarding Dr. 9 Pierce s opinions: 10 Dr. Pierce diagnosed [plaintiff] with dysthymic disorder and 11 concluded [plaintiff] could perform simple repetitive tasks, may have 12 some difficulty working with others, and may be capable of 13 concentrating adequately for a regular work schedule. . . . [¶] [T]he 14 undersigned gives . . . great weight to Dr. Pierce s opinion limiting 15 [plaintiff] to simple repetitive tasks. 16 (AR 194) (citing Ex. 23 F at 6 [AR 403]). 17 C. 18 Plaintiff argues that the ALJ failed properly to account for Dr. Pierce s Analysis 19 opinion that plaintiff may have some difficulty working with others. (Plaintiff s 20 Motion at 5-6). The Court agrees. 21 In the Post-Remand Decision, the ALJ did not explain the weight, if any, 22 given to Dr. Pierce s opinion that plaintiff may be limited in his ability to work 23 effectively with others. Nor did the ALJ include any limitation on plaintiff s 24 ability to work with others in the residual functional capacity assessment for 25 plaintiff or in the hypothetical question posed to the vocational expert. (AR 25, 26 191). The ALJ s failure to account for such limitation was legal error. See 27 Lingenfelter v. Astrue, 504 F.3d 1028, (9th Cir. 2007) ( [W]hen the ALJ 28 completely ignores or neglects to mention a treating physician s medical opinion 8 1 that is relevant to the medical evidence being discussed . . . [the case] should be 2 remanded to the agency for proper consideration of the evidence. ) (citation 3 omitted). 4 The Court cannot find such error harmless. At the Pre-Remand Hearing, the 5 vocational expert testified that there would be no jobs available in the national 6 economy for plaintiff (or a hypothetical person with plaintiff s characteristics) if 7 such person s symptoms and problems caused him to be off task 8 approximately 20 percent of the time. (AR 26). Here, it is unclear from the 9 current record whether a limitation in plaintiff s ability to work effectively with 10 others might cause plaintiff to be off task for any period of time which would be 11 material to a disability determination (e.g., 20 percent of the time or greater). The 12 Court therefore cannot conclude that the vocational expert would have opined (or 13 that the ALJ relying upon such opinion would have determined) that plaintiff 14 could perform work which exists in significant numbers in the national economy if 15 the ALJ had included in the hypothetical question plaintiff s asserted limitation in 16 his ability to work effectively with others. Accordingly, the Court cannot find the 17 ALJ s error was harmless. 18 To the extent defendant argues that the ALJ properly disregarded Dr. 19 Pierce s opinion because it was based on speculation (e.g., not significant 20 probative evidence), such argument lacks merit. (Defendant s Motion at 6-8). 21 Here, the ALJ found such evidence significant enough to mention in the Post22 Remand Decision. Although, as defendant also suggests, the ALJ may ultimately 23 determine that plaintiff s limitation in his ability to work with others is mild and 24 not inconsistent with the jobs identified by a vocational expert, the ALJ did not do 25 so in the Post-Remand Decision. This Court is constrained to review the reasons 26 cited by the ALJ. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 27 Accordingly, this case must be remanded to permit the ALJ properly to 28 consider the medical opinion evidence. 9 1 V. CONCLUSION6 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is reversed in part, and this matter is remanded for further administrative 4 action consistent with this Opinion.7 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 DATED: September 30, 2011 7 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 6 The Court need not, and has not adjudicated plaintiff s other challenges to the ALJ s 23 decision, except insofar as to determine that a reversal and remand for immediate payment of 24 benefits would not be appropriate. 25 26 27 28 7 When a court reverses an administrative determination, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 10

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