Glenn A Davis v. Michael J Astrue, No. 2:2012cv01474 - Document 18 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: Plaintiff Glenn A. Davis (Plaintiff) seeks judicial review of the Commissioners final decision denying his application for supplemental security income benefits (SSI) pursuant to Title XVI of the Social Security Act. For the reasons stated below, the Commissioner's decision is remanded for further proceedings. (See document for details.) < >(rla)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 GLENN A. DAVIS, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-1474-MLG MEMORANDUM OPINION AND ORDER 19 Plaintiff Glenn A. Davis ( Plaintiff ) seeks judicial review of the 20 Commissioner s final decision denying his application for supplemental 21 security income benefits ( SSI ) pursuant to Title XVI of the Social 22 Security Act. For the reasons stated below, the Commissioner s decision 23 is remanded for further proceedings. 24 25 I. Factual and Procedural Background 26 Plaintiff was born on March 29, 1961. (Administrative Record ( AR ) 27 at 32, 75). He has a limited education and is able to communicate in 28 English. (AR at 32). 1 On March 15, 2010, Plaintiff filed an application for SSI, alleging 2 that he has been disabled since January 2, 2002, due to degenerative 3 disc disease, rheumatoid arthritis, hip and low back problems, a 4 learning impairment, and illiteracy. (AR at 139). The Social Security 5 Administration 6 reconsideration.1 (AR at 95-98, 100-04). denied Plaintiff s application initially and on An administrative hearing was held before Administrative Law Judge 7 8 Sherwin 9 Plaintiff, who was represented by counsel, testified at the hearing. In 10 a written decision dated May 26, 2011, the ALJ found: Plaintiff had not 11 engaged in substantial gainful activity since March 15, 2010, the date 12 of the application (step one); Plaintiff has the severe impairment of 13 degenerative disc disease of the lumbar spine (step two); Plaintiff s 14 impairment did not meet or equal any impairment in the Listing (step 15 three); Plaintiff retained the residual functional capacity ( RFC ) to 16 perform the full range of medium work, see 20 C.F.R. § 416.967(a); 17 Plaintiff was unable to perform past relevant work (step four); and 18 Medical Vocational Guideline Rule 203.26 directed a finding of not 19 disabled (step five), given Plaintiff s residual functional capacity, 20 age, education and work experience. (AR at 23-33). Accordingly, the ALJ 21 determined that Plaintiff had not been under a disability since the date 22 he filed the SSI application. (AR at 33). On December 20, 2011, the 23 Appeals Council denied review. Biesman ( the ALJ ) on May 23, 2011. (AR at 71-90). Plaintiff commenced this action for judicial review on March 2, 24 25 F. 2012. The parties filed a joint statement of disputed issues on 26 27 28 1 Plaintiff also applied for Disability Insurance Benefits. (AR at 117-20). That application was denied, as Plaintiff had not worked long enough to qualify for disability benefits. (AR at 65-67, 117-20). 2 1 September 18, 2012. Plaintiff contends that the ALJ: (1) failed to 2 correctly consider the opinions of Plaintiff s examining physicians; and 3 (2) 4 Stipulation at 4-7, 10-18, 23-24). Plaintiff seeks remand for further 5 proceedings. (Joint Stipulation at 19). The Commissioner requests that 6 the ALJ s decision be affirmed. (Joint Stipulation at 19). The Joint 7 Stipulation has been taken under submission without oral argument. failed to correctly consider Plaintiff s testimony. (Joint 8 9 II. Standard of Review Under 10 42 U.S.C. § 405(g), a district court may review the 11 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 12 findings and decision should be upheld if they are free from legal error 13 and are supported by substantial evidence based on the record as a 14 whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 15 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 16 evidence means such evidence as a reasonable person might accept as 17 adequate 18 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more 19 than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d 20 at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 21 2006)). To determine whether substantial evidence supports a finding, 22 the reviewing court must review the administrative record as a whole, 23 weighing both the evidence that supports and the evidence that detracts 24 from the Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 25 720 (9th Cir. 1996). If the evidence can reasonably support either 26 affirming or reversing, the reviewing court may not substitute its 27 judgment for that of the Commissioner. Id. at 720-721. 28 // to support a conclusion. 3 Richardson, 402 U.S. at 401; 1 III. Discussion 2 A. Plaintiff s Mental Impairment 3 Plaintiff contends that the ALJ failed to properly consider the 4 medical evidence concerning his borderline intellectual functioning. 5 (Joint Stipulation at 4). The Court agrees with Plaintiff. 6 On August 5, 2008, Steven I. Brawer, Ph.D conducted a psychological 7 evaluation of Plaintiff. (AR at 211-17). Plaintiff reported that he had 8 been classified with a learning disability and was unable to read or 9 write. (AR at 212). Plaintiff also stated that he had been depressed for 10 several years. (AR at 212). Intelligence testing revealed that Plaintiff 11 had a full scale IQ score of 73, which was in the borderline range of 12 intellectual functioning. (AR at 214-15). Plaintiff s general memory 13 functioning and working memory were also in the borderline range. (AR at 14 215). Plaintiff was in the mildly delayed range of visual and perceptual 15 motor functioning and in the low average range for short-term visual 16 memory for designs. (AR at 215-16). Plaintiff displayed a mild-to- 17 moderate impairment on complex tasks involving mental flexibility in 18 shifting sets. (AR at 264). 19 Dr. Brawer determined that Plaintiff was functioning in the 20 borderline range of intellectual ability. (AR at 216). Dr. Brawer 21 diagnosed 22 disorder, NOS. (AR at 216). Dr. Brawer opined that Plaintiff would be 23 able to learn a simple, repetitive task and may be able to perform some 24 detailed, varied or complex nonverbal tasks. (AR at 216). Dr. Brawer 25 further found that Plaintiff demonstrated mildly diminished attention, 26 concentration, persistence and pace in completing tasks, and that 27 Plaintiff may have mild limitations in the ability to effectively manage 28 customary Plaintiff work with stresses, depressive and disorder, difficulties 4 NOS, maintaining and learning stamina and 1 motivation. (AR at 217). 2 The ALJ concluded that Plaintiff did not suffer from a severe 3 mental impairment. (AR at 29, 32). While the ALJ found Plaintiff s 4 depression 5 conditions, the ALJ found that Plaintiff was able to perform the full 6 range of medium work. (AR at 26). The ALJ asserted that Dr. Brawer s 7 findings were consistent with the record as a whole, including the 8 opinions 9 consultant. (AR at 31, 265-68, 269-78). The ALJ stated that he afforded 10 of and an learning examining disorder to psychiatrist be and medically determinable non-examining medical significant weight to Dr. Brawer s opinion. (AR at 31). 11 It is well settled that an ALJ must present specific and legitimate 12 reasons supported by substantial evidence in the record before rejecting 13 an examining physician s opinion. Lester v. Chater, 81 F.3d 821, 830-31 14 (9th Cir. 1996). The ALJ may reject physicians opinions by setting out 15 a detailed and thorough summary of the facts and conflicting clinical 16 evidence, stating his interpretation thereof, and making findings. 17 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). Rather than merely 18 stating his conclusions, the ALJ must set forth his own interpretations 19 and explain why they, rather than the doctors , are correct. Id. 20 (citing Embrey v. Bowen, 849 F.2d 418, 421 22 (9th Cir. 1988)). 21 Here, the ALJ erred by failing to provide reasons for discounting 22 Dr. Brawer s opinion. Although the ALJ stated that he gave Dr. Brawer s 23 opinion significant weight, the ALJ did not address Dr. Brawer s 24 finding that Plaintiff may be able to perform some detailed, varied or 25 complex nonverbal tasks. (AR at 216) (emphasis added). It was improper 26 for the ALJ to rely on aspects of Dr. Brawer s opinion supporting his 27 evaluation of Plaintiff s mental condition, while ignoring those aspects 28 of Dr. Brawer s findings contradicting that conclusion. Gallant v. 5 1 Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (stating that it is error 2 for an ALJ to ignore or misstate the competent evidence in the record in 3 order to justify her conclusion); Day v. Weinberger, 522 F.2d 1154, 1156 4 (9th Cir. 1975) (stating that an ALJ is not permitted to reach a 5 conclusion 6 evidence ). Therefore, the ALJ s consideration of Dr. Brawer s opinion 7 was not supported by substantial evidence. Lester, 81 F.3d at 830-31. simply by isolating a specific quantum of supporting 8 The Commissioner asserts that any error was harmless, as a residual 9 functional capacity assessment for medium work was supported by the 10 medical evidence of record. (Joint Stipulation at 9-10). [A] district 11 court s erroneous exclusion of evidence does not warrant reversal unless 12 the error more probably than not tainted the verdict. Molina v. 13 Astrue, 674 F.3d 1104, 1119 (9th Cir. 2012) (quoting Engquist v. Or. 14 Dept. of Agriculture, 478 F.3d 985, 1009 (9th Cir. 2007). [A]n ALJ s 15 error 16 nondisability 17 Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 18 2008)). 19 evidence was harmless, include whether the evidence at issue was 20 cumulative of other competent evidence, and the overall strength of the 21 case against the appealing party. Id. at 1119-20 (internal quotation 22 marks and citations omitted). Here, the Commissioner contends that Dr. 23 Brawer s opinion was consistent with the opinions of another examining 24 physician, 25 physician. (Joint Stipulation at 9-10; AR at 265-68, 269-78). Both Dr. 26 Duong and the state agency physician found that Plaintiff had no mental 27 functional limitations. (AR at 265-68, 269-78). Dr. Brawer s opinion, 28 however, significantly differed from these doctor s opinions. Dr. Brawer is harmless where it determination. Factors important Minh-Khoi in Doung, is inconsequential Molina, 674 determining M.D., 6 and F.3d whether a state to at the ultimate 1115 (quoting the omission agency of reviewing 1 diagnosed Plaintiff with mental impairments (learning disorder, NOS and 2 borderline intellectual functioning) and assessed functional limitations 3 (ability to learn a simple, repetitive task and may be able to perform 4 some detailed, varied or complex nonverbal tasks ) that were never 5 discussed by the other physicians. (AR at 216). Further, Dr. Duong did 6 not 7 psychological record, and the non-examining physician s opinion by 8 itself did not justify rejection of an examining physician s opinion. 9 Lester, 81 F.3d at 831; (AR at 265-68). Thus, Dr. Brawer s administer any intellectual testing or review Plaintiff s assessment 10 of Plaintiff s mental functioning was not cumulative of other competent 11 evidence. Molina, 674 F.3d at 1115. Viewing the record as a whole, the 12 Court cannot find that the ALJ s error was harmless or inconsequential 13 to the ultimate disability determination. Molina, 674 F.3d at 1115 14 15 IV. Conclusion 16 This matter is reversed and remanded so that the ALJ may further 17 evaluate the medical evidence and make appropriate findings with respect 18 to Plaintiff s mental condition. See Bunnell v. Barnhart, 336 F.3d 1112, 19 1115-16 (9th Cir. 2003) (where there are outstanding issues that must be 20 resolved before a determination of disability can be made, and it is not 21 clear from the record that the ALJ would be required to find the 22 claimant disabled if all the evidence were properly evaluated, remand is 23 appropriate).2 24 \\ 25 \\ 26 2 27 28 In light of this remand, the Court does not reach Plaintiff s remaining arguments. See Bunnell, 336 F.3d at 1115-16. The Court recommends, however, that the ALJ consider all of Plaintiff s arguments when determining the merits of his case on remand. 7 1 2 3 ORDER Accordingly, IT IS ORDERED that this action is REMANDED for further proceedings consistent with this Memorandum Opinion. 4 5 DATED: October 1, 2012 6 7 8 ______________________________ MARC L. GOLDMAN United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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