Martin Varela v. Carolyn W Colvin, No. 5:2014cv01268 - Document 20 (C.D. Cal. 2014)
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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Martin Varela v. Carolyn W Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARTIN VARELA, 12 Plaintiff, 13 14 15 v. Case No. EDCV 14-1268 JC MEMORANDUM OPINION AND ORDER OF REMAND CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. 19 SUMMARY On July 2, 2014, plaintiff Martin Varela (“plaintiff”) filed a Complaint 20 seeking review of the Commissioner of Social Security’s denial of plaintiff’s 21 application for benefits. The parties have consented to proceed before the 22 undersigned United States Magistrate Judge. 23 This matter is before the Court on the parties’ cross motions for summary 24 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The 25 Court has taken both motions under submission without oral argument. See Fed. 26 R. Civ. P. 78; L.R. 7-15; July 9, 2014 Case Management Order ¶ 5. 27 /// 28 /// 1 Dockets.Justia.com 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. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On or about July 10, 2009, plaintiff filed applications for Supplemental 7 Security Income and Disability Insurance Benefits. (Administrative Record 8 (“AR”) 118, 125). Plaintiff asserted that he became disabled on July 1, 2008, due 9 to seizures, mental impairment, inability to stand for a long time, and bad feet. 10 (AR 139). 11 Plaintiff currently appeals an administrative decision (the second in the 12 case) issued after this Court entered judgment reversing and remanding the case, 13 and the Appeals Council, in turn, remanded the case to an Administrative Law 14 Judge (“ALJ”) to conduct further proceedings. (AR 484-94, 495-97, 989-1001). 15 On remand, the ALJ examined the medical record and heard testimony from 16 plaintiff (who was represented by counsel) and a vocational expert on December 17 30, 2013. (AR 434-55). 18 On April 4, 2014, the ALJ determined that plaintiff was not disabled 19 through the date of the decision. (AR 989-1001). Specifically, the ALJ found: 20 (1) plaintiff suffered from the following severe impairments: osteoarthritis and 21 affective disorder (AR 991); (2) plaintiff’s impairments, considered singly or in 22 combination, did not meet or medically equal a listed impairment (AR 992-93); 23 (3) plaintiff retained the residual functional capacity to perform light work 24 (20 C.F.R. §§ 404.1567(b), 416.967(b)), but was limited to simple and routine 25 tasks in a non-public setting (AR 993); (4) plaintiff had no past relevant work 26 (AR 999); (5) there are jobs that exist in significant numbers in the national 27 economy that plaintiff could perform, specifically Inspector, Packager, and 28 /// 2 1 Assembler (AR 1000); and (6) plaintiff’s allegations regarding his limitations were 2 not entirely credible (AR 995). 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 any 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 not 9 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 10 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The 11 impairment must render the claimant incapable of performing the work the 12 claimant previously performed and incapable of performing any other substantial 13 gainful employment that exists in the national economy. Tackett v. Apfel, 180 14 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 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) so, the claimant is not disabled. If not, proceed to step two. 18 19 Is the claimant presently engaged in substantial gainful activity? If (2) Is the claimant’s alleged impairment sufficiently severe to limit 20 the claimant’s ability to work? If not, the claimant is not 21 disabled. 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. 3 1 (5) Does the claimant’s residual functional capacity, when 2 considered with the claimant’s age, education, and work 3 experience, allow the claimant to adjust to other work that 4 exists in significant numbers in the national economy? If so, 5 the 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); see also Molina, 674 F.3d at 8 1110 (same). 9 The claimant has the burden of proof at steps one through four, and the 10 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 11 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch 12 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of 13 proving disability). 14 B. 15 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 16 benefits only if it is not supported by substantial evidence or if it is based on legal 17 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 18 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 19 (9th Cir. 1995)). Substantial evidence is “such relevant evidence as a reasonable 20 mind might accept as adequate to support a conclusion.” Richardson v. Perales, 21 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 22 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 23 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 24 To determine whether substantial evidence supports a finding, a court must 25 “‘consider the record as a whole, weighing both evidence that supports and 26 evidence that detracts from the [Commissioner’s] conclusion.’” Aukland v. 27 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 28 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 4 1 or reversing the ALJ’s conclusion, a court may not substitute its judgment for that 2 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 3 IV. DISCUSSION 4 Plaintiff contends that the ALJ failed properly to consider the opinions of 5 two state agency reviewing physicians – Dr. K. Wahl and Dr. J. Hartman. 6 (Plaintiff’s Motion at 2-9) (citing AR 345-50, 404-05). As discussed in detail 7 below, the Court agrees. As the Court cannot find that the ALJ’s error was 8 harmless, a remand is warranted. 9 10 A. Pertinent Law In Social Security cases, courts give varying degrees of deference to 11 medical opinions depending on the type of physician who provided them, namely 12 “treating physicians,” “examining physicians,” and “nonexamining physicians.” 13 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citation and quotation 14 marks omitted). A treating physician’s opinion is generally given the most weight, 15 and may be “controlling” if it is “well-supported by medically acceptable clinical 16 and laboratory diagnostic techniques and is not inconsistent with the other 17 substantial evidence in [the claimant’s] case record[.]” Orn v. Astrue, 495 F.3d 18 625, 631 (9th Cir. 2007) (citations and quotation marks omitted). An examining, 19 but non-treating physician’s opinion is entitled to less weight than a treating 20 physician’s, but more weight than a nonexamining physician’s opinion. See id. 21 (citation omitted). 22 An ALJ may reject a nonexamining physician’s opinion “by reference to 23 specific evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 24 (9th Cir. 1998). Although an ALJ is not bound by the opinions of a nonexamining 25 physician, the ALJ may not ignore such opinions and “must explain the weight 26 given to the opinions” in the ALJ’s decision. Chavez v. Astrue, 699 F. Supp. 2d 27 1125, 1135 (C.D. Cal. 2009) (citations and quotation marks omitted). 28 /// 5 1 B. 2 In an August 19, 2009 Physical Residual Functional Capacity Assessment Additional Pertinent Facts 3 form (“August 19 RFC Form”), Dr. Wahl opined, among other things, that 4 plaintiff (i) could lift and/or carry 20 pounds occasionally and 10 pounds 5 frequently; and (ii) had limitations in near and far visual acuity, and could perform 6 “[n]o jobs where good [visual acuity is] necessary for safety.” (AR 346-47). 7 In a Case Analysis of the same date (“August 19 Case Analysis”), Dr. Wahl 8 adopted a residual functional capacity assessment for plaintiff of “light” work with 9 “visual limitations.” (AR 352). 10 In a March 4, 2010 Case Analysis (“March 4 Case Analysis”), Dr. Hartman 11 affirmed the “prior decision of light [residual functional capacity assessment] with 12 vision limitations.” (AR 405-06). 13 In the April 4, 2014 Administrative Decision, the ALJ stated, in pertinent 14 part (1) “The undersigned has read and considered all of the State agency 15 physicians’ reports . . . [and] has given great weight to the assessments of the State 16 agency medical/psychological consultants on initial review and on 17 reconsideration.”; and (2) “The assessments of these State agency consultants are 18 well supported by the objective medical evidence and are consistent with the 19 record as a whole . . . .” (AR 996-97) (citing, inter alia, Exhibits 9F [AR 345-50] 20 (August 19 RFC Form); 10F [AR 351-53] (August 19 Case Analysis); 16F [AR 21 404-05] (March 4 Case Analysis)). 22 C. 23 Here, the ALJ erred in his assessment of the opinions of Drs. Wahl and Analysis 24 Hartman. As noted above, the ALJ purportedly gave “great weight” to Dr. Wahl’s 25 August 19 RFC Form and Case Analysis, and Dr. Hartman’s March 4 Case 26 Analysis (collectively “State Agency Physician Reports”), and found the State 27 Agency Physician Reports to be “well supported by the objective medical 28 evidence and [] consistent with the record as a whole.” (AR 996-97). As also 6 1 noted above, both Dr. Wahl and Dr. Hartman opined that plaintiff would have 2 “vision limitations” (i.e., limitation in near and far visual acuity). (AR 347, 352, 3 405). In his decision, however, the ALJ did not include “vision limitations” in his 4 residual functional capacity assessment for plaintiff, and gave no explanation for 5 the omission. (AR 993, 996-97). As in the prior decision, it appears that the ALJ 6 either inaccurately characterized the State Agency Physician Reports as supportive 7 of his residual functional capacity assessment for plaintiff, or the ALJ 8 ignored/implicitly rejected the State Agency Physician Reports to the extent they 9 found “vision limitations” for plaintiff. Either way, the ALJ erred and the Court 10 cannot find such error to be harmless. 11 If the former – i.e., the ALJ inaccurately characterized the State Agency 12 Physician Reports as supporting the ALJ’s residual functional capacity assessment 13 for plaintiff – a remand is warranted to permit the ALJ to reconsider his 14 assessment that plaintiff retained the residual functional capacity to perform light 15 work with no vision limitations given the State Agency Physician Reports which 16 opine otherwise. See, e.g., Regennitter v. Commissioner, 166 F.3d 1294, 1297 17 (9th Cir. 1999) (“inaccurate characterization” of record cannot serve as substantial 18 evidence to support ALJ’s disability findings). 19 If the latter – i.e., the ALJ silently rejected the opinions expressed in the 20 State Agency Physician Reports that plaintiff had vision limitations – it is, 21 likewise, appropriate to remand so the ALJ can either account for such vision 22 limitations in plaintiff’s residual functional capacity assessment, or expressly 23 reject the nonexamining physicians’ opinions in such respect “by reference to 24 specific evidence in the medical record.” Sousa, 143 F.3d at 1244. 25 Finally, the Court cannot find the ALJ’s error harmless. The two 26 representative occupations the vocational expert identified at the hearing require 27 “frequent” near acuity. (AR 453) (citing Dictionary of Occupational Titles 28 (“DOT”) §§ 706.684-022 [Assembler, Small Products I], 729.687-010 [Assembler, 7 1 Electrical Accessories I]). The three occupations identified in the ALJ’s decision 2 (only one of which appears to be the same as an occupation identified by the 3 vocational expert) also require “frequent” near acuity. (AR 1000) (citing DOT 4 §§ 529.687-114 [Inspector], 559.687-074 [Inspector and Hand Packager], 5 706.684-022 [Assembler, Small Products I]). Consequently, all representative 6 occupations identified in the case appear to be inconsistent with plaintiff’s 7 limitation on “near [visual] acuity.” Therefore, the Court cannot conclude that the 8 ALJ’s nondisability determination at step five would have been the same had the 9 ALJ included vision limitations in his residual functional capacity assessment for 10 plaintiff and the hypothetical question posed to the vocational expert at the 11 hearing. Cf. Stout, 454 F.3d at 1055 (may affirm decision where ALJ’s error “was 12 nonprejudicial to the claimant or irrelevant to the ALJ’s ultimate disability 13 conclusion”). 14 V. CONCLUSION1 15 For the foregoing reasons, the decision of the Commissioner of Social 16 Security is reversed in part, and this matter is remanded for further administrative 17 action consistent with this Opinion.2 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 DATED: December 22, 2014 _______________/s/__________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 20 21 22 23 1 The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s 24 decision, except insofar as to determine that a reversal and remand for immediate payment of 25 benefits would not be appropriate. 26 27 28 2 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 proceedings can remedy defects in the original administrative proceeding. . . .” Garrison, 759 F.3d at 1019 (citation and internal quotation marks omitted). 8
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