Zoe L Watt v. Carolyn W. Colvin, No. 5:2012cv01875 - Document 22 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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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 17 ZOE L. WATT, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY,1 ) ) ) Defendant. ) ) ___________________________________) NO. ED CV 12-1875-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 21 judgment are denied and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 /// 24 /// 25 /// 26 1 27 28 Carolyn W. Colvin, who became Acting Commissioner of Social Security as of February 14, 2013, is hereby substituted as Defendant in this matter. See Fed. R. Civ. P. 25(d)(1); 42 U.S.C. § 405(g). 1 PROCEEDINGS 2 3 Plaintiff filed a complaint on November 1, 2012, seeking review 4 of the Commissioner s denial of disability benefits. 5 filed a consent to proceed before a United States Magistrate Judge on 6 December 18, 2012. 7 May 2, 2013. 8 July 3, 2013. 9 without oral argument. 10 The parties Plaintiff filed a motion for summary judgment on Defendant filed a cross-motion for summary judgment on The Court has taken the motions under submission See L.R. 7-15; Order, filed November 2, 2012. 11 12 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 13 14 Plaintiff, a former receptionist, asserts disability since 15 February 11, 2006, based on alleged physical and psychological 16 impairments (Administrative Record ( A.R. ) 39-42, 325-345). 17 Administrative Law Judge ( ALJ ) found Plaintiff retains the residual 18 functional capacity to perform light work involving moderately 19 complex tasks, including Plaintiff s past relevant work as a 20 receptionist (A.R. 23-28). 21 evidence but denied review, which made the ALJ s decision the final 22 decision of the Administration (A.R. 1-3). The The Appeals Council considered additional 23 24 The part of the ALJ s decision discussing Plaintiff s residual 25 functional capacity contains no specific mention of the opinions of 26 Dr. William George or Dr. Wayne Hill (A.R. 25-27). 27 Plaintiff s treating physician, opined that Plaintiff s impairments 28 limit her in ways incompatible with the performance of substantial 2 Dr. George, 1 gainful activity (A.R. 520-24). For example, Dr. George opined that 2 Plaintiff s impairments likely would cause her to be absent from work 3 more than three times per month, and a vocational expert testified 4 that a person so limited could not perform any jobs (A.R. 68-69, 523). 5 Dr. Hill, a state agency psychologist, opined Plaintiff is moderately 6 mentally limited in several respects and can perform only work that is 7 simple in nature (A.R. 510-12). 8 9 STANDARD OF REVIEW 10 11 Under 42 U.S.C. section 405(g), this Court reviews the 12 Administration s decision to determine if: (1) the Administration s 13 findings are supported by substantial evidence; and (2) the 14 Administration used proper legal standards. 15 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 16 499 F.3d 1071, 1074 (9th Cir. 2007). 17 relevant evidence as a reasonable mind might accept as adequate to 18 support a conclusion. 19 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 20 F.3d 1063, 1067 (9th Cir. 2006). See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 21 22 Where, as here, the Appeals Council considered additional 23 material but denied review, the additional material becomes part of 24 the Administrative Record for purposes of the Court s analysis. 25 Brewes v. Commissioner, 682 F.3d 1157, 1163 (9th Cir. 2012) ( [W]hen 26 the Appeals Council considers new evidence in deciding whether to 27 review a decision of the ALJ, that evidence becomes part of the 28 administrative record, which the district court must consider when 3 See 1 reviewing the Commissioner s final decision for substantial 2 evidence. ; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 3 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1231 (2011) 4 (courts may consider evidence presented for the first time to the 5 Appeals Council to determine whether, in light of the record as a 6 whole, the ALJ s decision was supported by substantial evidence and 7 was free of legal error ); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th 8 Cir. 1993) ( the Appeals Council considered this information and it 9 became part of the record we are required to review as a whole ); see 10 generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 11 12 DISCUSSION 13 14 I. The ALJ Erred With Respect to Dr. George. 15 16 A treating physician s conclusions must be given substantial 17 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 18 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ( the ALJ must 19 give sufficient weight to the subjective aspects of a doctor s 20 opinion. . . . 21 treating physician ) (citation omitted); see also Orn v. Astrue, 495 22 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference owed to 23 treating physician opinions). 24 opinions are contradicted,2 if the ALJ wishes to disregard the 25 opinion[s] of the treating physician he . . . must make findings This is especially true when the opinion is that of a Even where the treating physician s 26 2 27 28 Rejection of an uncontradicted opinion of a treating physician requires a statement of clear and convincing reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 4 1 setting forth specific, legitimate reasons for doing so that are based 2 on substantial evidence in the record. 3 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); 4 see Rodriguez v. Bowen, 876 F.2d at 762 ( The ALJ may disregard the 5 treating physician s opinion, but only by setting forth specific, 6 legitimate reasons for doing so, and this decision must itself be 7 based on substantial evidence ) (citation and quotations omitted). Winans v. Bowen, 853 F.2d 8 9 Furthermore, [t]he ALJ has a special duty to fully and fairly 10 develop the record and to assure that the claimant s interests are 11 considered. 12 counsel. 13 Section 404.1512(e) of 20 C.F.R. provides that the Administration 14 will seek additional evidence or clarification from your medical 15 source when the report from your medical source contains a conflict or 16 ambiguity that must be resolved, the report does not contain all of 17 the necessary information, or does not appear to be based on medically 18 acceptable clinical and laboratory diagnostic techniques. 19 v. Chater, 80 F.3d at 1288 ( If the ALJ thought he needed to know the 20 basis of Dr. Hoeflich s opinions in order to evaluate them, he had a 21 duty to conduct an appropriate inquiry, for example, by subpoenaing 22 the physicians or submitting further questions to them. 23 have continued the hearing to augment the record ) (citations 24 omitted). This duty exists even when the claimant is represented by Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). See Smolen He could also 25 26 The ALJ plainly erred in failing to mention Dr. George s 27 opinions, and in failing to state specific, legitimate reasons for 28 implicitly rejecting those opinions. 5 See Lingenfelter v. Astrue, 504 1 F.3d 1028, 1038 n.10 (9th Cir. 2007) ( Of course, an ALJ cannot avoid 2 these requirements [to state specific, legitimate reasons] by not 3 mentioning the treating physician s opinion and making findings 4 contrary to it. ); Salvadore v. Sullivan, 917 F.2d 13, 15 (9th Cir. 5 1990) (implicit rejection of treating physician s opinion cannot 6 satisfy Administration s obligation to set forth specific, legitimate 7 reasons ). 8 9 Defendant appears to argue that the ALJ s reliance on the 10 conflicting opinion of the non-examining medical expert suffices to 11 justify the ALJ s implicit rejection of Dr. George s opinions. 12 argument must be rejected for at least two reasons. 13 contradiction of a treating physician s opinion by another physician s 14 opinion triggers rather than satisfies the requirements of stating 15 specific, legitimate reasons. 16 574 F.3d 685, 692 (9th Cir. 2009); Orn v. Astrue, 495 F.3d at 631-33; 17 Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 18 opinions of a non-examining physician cannot form the sole basis for 19 rejecting the opinion of a treating physician. 20 Commissioner, 169 F.3d 595, 602 (9th Cir. 1999) ( The opinion of a 21 non-examining medical advisor cannot by itself constitute substantial 22 evidence that justifies the rejection of the opinion of an examining 23 or treating physician ); Lester v. Chater, 81 F.3d at 830 ( The ALJ s 24 primary reason for rejecting [the treating physicians ] opinions was 25 that they conflicted with the testimony of a non-examining medical 26 advisor. 27 Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) ( The nonexamining 28 physicians conclusion, with nothing more, does not constitute Such First, the See, e.g., Valentine v. Commissioner, Second, the See, e.g., Morgan v. In so doing, the ALJ committed an error of law ); Pitzer v. 6 1 substantial evidence, particularly in view of the conflicting 2 observations, opinions, and conclusions of an examining physician ). 3 4 II. The ALJ Erred With Respect to Dr. Hill. 5 6 Social Security Ruling ( SSR ) 96-6p states that [f]indings of 7 fact made by state agency medical and psychological consultants and 8 other program physicians and psychologists regarding the nature and 9 severity of an individual s impairment(s) must be treated as expert 10 opinion evidence of nonexamining sources. . . . Consequently, ALJs 11 may not ignore these opinions and must explain the weight given to 12 the opinions in their decisions. SSR 96-6p.3 13 14 The ALJ erred by failing to mention the opinions of Dr. Hill when 15 discussing Plaintiff s residual functional capacity.4 16 Sickle v. Astrue, 385 Fed. App x 739, 741 (ALJ erred by failing to 17 mention the opinions of the state agency psychologist that the 18 claimant had moderate mental limitations and could only work in a 19 low stress setting ); Bain v. Astrue, 319 Fed. App x 543, 546 (9th 20 Cir. Mar. 12, 2009) ( Here, the ALJ failed to discredit or incorporate 21 the limitations enumerated by state agency consultant Frank Lahman, 22 including that Bain was moderately limited in her ability to accept 23 instructions and respond appropriately to criticism from supervisors See id.; Van 24 25 26 27 28 3 Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 4 The ALJ did briefly reference some but not all of Dr. Hill s opinions when discussing Plaintiff s failure to meet or equal the Listings (A.R. 24). 7 1 and moderately limited in her ability to respond appropriately to 2 changes in the work setting. 3 address these limitations ); Hambrick v. Apfel, 1998 WL 329368, at *3 4 (N.D. Tex. June 11, 1998) ( The ALJ s decision does not mention the 5 weight he gave to the state agency review physician s opinions. 6 court cannot determine whether the ALJ, in contravention of the 7 purpose for SSR 96-6p, ignored the opinion. ). Accordingly, on remand the ALJ must The 8 9 Contrary to Defendant s argument, the Court cannot confidently 10 conclude that a hypothetical application of the Grids would render 11 this error harmless. 12 impairments significantly limit his or her range of work the grids do 13 not apply, and the testimony of a vocational expert is required to 14 identify specific jobs within the claimant s abilities. 15 Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988); see Tackett v. Apfel, 180 16 F.3d 1094, 1103 (9th Cir. 1999); Burkhart v. Bowen, 856 F.2d 1335, 17 1340-41 (9th Cir. 1988). Where, as here, a claimant s non-exertional Polny v. 18 19 III. Remand is Appropriate. 20 21 Remand is appropriate because the circumstances of this case 22 suggest that further administrative review could remedy the ALJ s 23 errors. 24 generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 25 administrative determination, the proper course is remand for 26 additional agency investigation or explanation, except in rare 27 circumstances). 28 /// McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 8 1 The Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 2 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) ( Harman ) does not 3 compel a different result herein. 4 that improperly rejected medical opinion evidence should be credited 5 and an immediate award of benefits directed where (1) the ALJ has 6 failed to provide legally sufficient reasons for rejecting such 7 evidence, (2) there are no outstanding issues that must be resolved 8 before a determination of disability can be made, and (3) it is clear 9 from the record that the ALJ would be required to find the claimant In Harman, the Ninth Circuit stated 10 disabled were such evidence credited. Harman, 211 F. 3d at 1178 11 (citations and quotations omitted). 12 holding survives the Supreme Court s decision in INS v. Ventura, 537 13 U.S. at 16,5 the Harman holding does not direct a benefits award in 14 the present case. 15 physicians opinions that must be resolved before a determination of 16 disability can be made. 17 be required to find Plaintiff disabled for the entire claimed period 18 of disability if Dr. George s and Dr. Hill s opinions were fully 19 credited. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// Assuming, arguendo, the Harman There are outstanding issues concerning the Moreover, it is not clear that the ALJ would See Luna v. Astrue, 623 F.3d at 1035. 26 5 27 28 The Ninth Circuit has continued to apply Harman despite INS v. Ventura. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010); Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2009); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 9 1 CONCLUSION 2 3 For all of the foregoing reasons,6 Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: July 26, 2013. 10 11 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 10

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