Sandro Fabio Garcia v. Carolyn W Colvin, No. 2:2013cv03655 - Document 16 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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Sandro Fabio Garcia v. Carolyn W Colvin Doc. 16 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 SANDRO FABIO GARCIA, ) NO. CV 13-3655-MAN ) Plaintiff, ) ) MEMORANDUM OPINION v. ) ) AND ORDER CAROLYN W. COLVIN, ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ________________________________ ) 17 18 INTRODUCTION 19 20 Plaintiff filed a Complaint on June 14, 2013, seeking review of the denial of plaintiff’s 21 application for a period of disability and disability insurance benefits (“DIB”). On July 23, 2013 22 the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United 23 States Magistrate Judge. (ECF Nos. 9, 10.) On March 11, 2014, the parties filed a Joint 24 Stipulation (“Joint Stip.”) in which plaintiff seeks an order reversing the Commissioner’s decision 25 and awarding full benefits to plaintiff or, in the alternative, remanding the matter for further 26 consideration and the completion of the sequential evaluation process. (Joint Stip. at 16.) The 27 Commissioner requests that her decision be affirmed or, alternatively, if the Court finds that the 28 Dockets.Justia.com 1 ALJ erred, that the case be remanded for further consideration. (Id. at 17.) The Court has taken 2 the matter under submission without oral argument. 3 4 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 5 6 Plaintiff, who was born on March 6, 1981, began receiving DIB in November 1994, when 7 he was 13 years old. (See Administrative Record (“A.R.”) 12, 168-69.) His benefits were 8 continued after an age 18 redetermination but were terminated in November 2009, when plaintiff, 9 who was then 28 years old, was incarcerated after a conviction for strong armed robbery. (See 10 id. 12, 16, 169.) Plaintiff was released from state prison on June 27, 2010 following the 11 completion of his two year sentence. (Id. 16.) 12 13 Plaintiff filed the instant application for a period of disability and DIB on April 21, 2010, two 14 few months before his release from prison. (A.R. 12, 168, 171.) Plaintiff claims to have been 15 disabled since November 1, 1994, the date his last application for DIB was granted, due to a 16 learning disability, “adjustment disorder with features of depression and anxiety,” and “mental 17 issues, depression, and anxiety” (Id. 172). Plaintiff has past relevant work experience as an 18 elementary school janitor (DOT 387.682-018), usher (DOT 344.677-014), and security guard (DOT 19 372.667-034). (Id. 72, 174.) He failed to hold any of his prior jobs for more than four months. 20 (See id. 174.) At the time of his application, he was working as an in-home care attendant for his 21 mother (DOT 354.377-014). (Id. 53, 72.) 22 23 After the Commissioner denied plaintiff’s 2010 application, plaintiff requested a hearing. 24 (A.R. 91.) On October 24, 2011, plaintiff, who was represented by counsel, appeared at a hearing 25 before Administrative Law Judge Alexander Weir III. (Id. 49.) Vocational expert Sandra Trost 26 (“VE”) also testified. (Id. 45-57) On December 16, 2011, the ALJ denied plaintiff’s claim. (Id. 27 12-20.) Plaintiff submitted additional evidence to the Appeals Council, but the Appeals Council 28 denied plaintiff’s request for review. (Id. 1-4.) 2 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 In his December 16, 2011 decision, the ALJ found that plaintiff had not engaged in 4 substantial gainful activity since April 21, 2010, the date he protectively filed for benefits. (A.R. 5 15.) The ALJ determined that plaintiff has the medically determinable impairments of “obesity, 6 mental depression, and a learning disorder” but found that none of those impairments, either 7 independently or in combination, constituted a severe impairment under step two of the 8 sequential analysis. (Id. 15-20.) Accordingly, the ALJ found that plaintiff was not disabled. (Id. 9 20.) 10 STANDARD OF REVIEW 11 12 13 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to determine 14 whether it is free from legal error and supported by substantial evidence in the record as a whole. 15 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is ‘more than a mere 16 scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might 17 accept as adequate to support a conclusion.’” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 18 522-23 (9th Cir. 2014) (internal citations omitted). “Even when the evidence is susceptible to 19 more than one rational interpretation, we must uphold the ALJ’s findings if they are supported by 20 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 21 2012). 22 23 Although this Court cannot substitute its discretion for that of the Commissioner, the Court 24 nonetheless must review the record as a whole, “weighing both the evidence that supports and 25 the evidence that detracts from the [Commissioner’s] conclusion.” Lingenfelter v. Astrue, 504 26 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted); Desrosiers v. 27 Sec’y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ is responsible for 28 determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” 3 1 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 2 3 The Court will uphold the Commissioner’s decision when the evidence is susceptible to 4 more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 5 However, the Court may review only the reasons stated by the ALJ in his decision “and may not 6 affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 630; see also Connett 7 v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court will not reverse the Commissioner’s 8 decision if it is based on harmless error, which exists only when it is “clear from the record that 9 an ALJ’s error was ‘inconsequential to the ultimate nondisability determination.’” Robbins v. Soc. 10 Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm’r of Soc. Sec., 454 F.3d 11 1050, 1055 (9th Cir. 2006)); see also Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1162 (9th 12 Cir. 2008). 13 14 DISCUSSION 15 16 Plaintiff’s sole contention is that the ALJ erred at step two of the sequential analysis in 17 finding that plaintiff does not have a severe impairment. (Joint Stip. at 4-8.) The regulations 18 define a severe impairment as “[a]n impairment or combination of impairments . . . [that] 19 significantly limit[s] your physical or mental ability to do basic work activities,” which include, inter 20 alia: “physical functions such as walking, standing, sitting, lifting . . . [;] capacities for seeing, 21 hearing, and speaking; understanding, carrying out, and remembering simple instructions; use 22 of judgment; responding appropriately to supervision, co-workers, and usual work situations; and 23 dealing with changes in a routine work setting.” 20 C.F.R. §§ 404.1521, 416.920(c), 416.921. 24 “An impairment or combination of impairments may be found not severe only if the evidence 25 establishes a slight abnormality that has no more than a minimal effect on an individual's ability 26 to work.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citations and internal quotation 27 marks omitted). If “an adjudicator is unable to determine clearly the effect of an impairment or 28 combination of impairments on the individual's ability to do basic work activities, the sequential 4 1 evaluation should not end with the not severe evaluation step.” Id. at 687 (citation and internal 2 quotation marks omitted). “Step two, then, is a de minimis screening device [used] to dispose 3 of groundless claims, and an ALJ may find that a claimant lacks a medically severe impairment or 4 combination of impairments only when his conclusion is clearly established by medical evidence.” 5 Id. (emphasis added) (citations and internal quotation marks omitted). 6 7 The ALJ based his decision at step two of the analysis primarily on the opinions of the 8 examining psychiatrist, Lou Ellen Sherrill, Ph.D. and the reviewing psychiatrist, H. Amado, M.D.1 9 (See A.R. 19.) Plaintiff contends, however, that the ALJ improperly ignored contradictory findings 10 by both sources -- Dr. Sherill found that plaintiff’s full scale IQ score was in the borderline range, 11 and Dr. Amado indicated that plaintiff had a severe impairment -- and by an examining 12 psychiatrist, Roger Pagel, Ph.D., who diagnosed plaintiff with, inter alia, a learning disorder and 13 generalized anxiety disorder in 1999. (Joint Stip. at 5-6.) Plaintiff also submitted to the Appeals 14 Council a mental impairment questionnaire filled out by his treating source, K. Lee, Ph.D., LCSW, 15 which states that: Dr. Lee has monthly contact with plaintiff; plaintiff has moderate limitations 16 in daily living and maintaining social functioning; plaintiff would likely have one or two episodes 17 of deterioration or decompensation in a work or work-like setting;2 and plaintiff would have 18 difficulty working a regular full time job. (A.R. 346-49.) Dr. Lee diagnosed plaintiff with major 19 20 21 22 23 24 25 26 27 1 The ALJ also cited the following reasons for finding that plaintiff did not have a severe impairment: (1) despite plaintiff's obesity, he conceded that he has no physical limitations and no other physical impairment; (2) by his own admission, plaintiff has no problem caring for his personal needs, can complete basic household chores and errands, and can engage in many activities that require a significant degree of concentration, such as playing video games, drawing, and driving a car; (3) plaintiff is generally able to get along well with family, friends, acquaintances, and neighbors, and has maintained a long-term relationship with his girlfriend, suggesting he has no significant limitation in his social functioning; (4) Dr. Robert Levin, a California Department of Corrections psychiatrist, predicted that plaintiff's auditory hallucinations and limitations in judgment and insight would subside once plaintiff was released from prison; (5) reports from the Parole Outpatient Clinic indicate that plaintiff did improve following his release, despite noncompliance with medication, because he ceased reporting perceptual distortions and exhibited fair reasoning, judgment, and insight; (6) plaintiff has experienced no episodes of decompensation of extended duration. (A.R. 18-19.) 2 28 The questionnaire did not specify any period of time in which these episodes of deterioration or decompensation would occur. (See generally A.R. 349.) 5 1 depressive disorder with psychotic features and a learning disorder and assigned plaintiff a GAF 2 score of 50, indicating serious symptoms or serious difficulties functioning. (Id. 346; see also id. 3 16 n.5 (explaining GAF scores).) 4 5 Defendant maintains that the assessments of plaintiff by Dr. Sherill and Dr. Amado provide 6 substantial evidence for the ALJ’s decision that plaintiff does not have a severe mental 7 impairment. (Joint Stip. at 11.) Defendant also contends that “the four-page mental impairment 8 questionnaire (from an unidentifiable source) that plaintiff submitted to the Appeals Council does 9 not change the fact that substantial evidence supports the ALJ’s decision. [That questionnaire is] 10 unsupported by treatment notes and signed above a partially illegible stamp indicating it was 11 completed by an LCSW (licensed clinical social worker).”3 (Joint Stip. at 13.) Having carefully 12 reviewed the record, the Court concludes that the absence of a severe impairment was not clearly 13 established by substantial evidence. Instead, the record reflects conflicting medical evidence as 14 to whether plaintiff’s impairment was severe. 15 16 The Court looks first at the opinion of Dr. Sherill, the examining psychiatrist. Dr. Sherill, 17 unlike the other medical sources, found that plaintiff does not suffer from a learning disorder. 18 (Compare A.R. 254 (diagnosing plaintiff with “occupation problem; dysthymia; bereavement”) with 19 A.R. 259, 262 (Dr. Amado’s opinion) and A.R. 336 (Dr. Pagel’s opinion) and A.R. 346, 349 (Dr. 20 Lee’s opinion).) 21 intelligence and memory in order to participate in the workforce.” (A.R. 254.) Dr. Sherill based 22 her opinion on the results of a battery of tests she conducted and on her observations of plaintiff 23 during the examination. Specifically, plaintiff generally scored in the average to low average 24 range, but his processing speed index and full scale IQ score were both borderline. (See A.R. 252- 25 54.) Dr. Sherill also noted that plaintiff demonstrated adequate interpersonal skills and adequate In line with that finding, Dr. Sherill opined that “[plaintiff] has adequate 26 27 28 3 Contrary to defendant’s contention, the source of the questionnaire is plainly identified as “Dr. K. Lee, Ph.D., LCSW,” the man plaintiff testified was his treating “doctor or something.” (See A.R. 55-56, 349.) 6 1 receptive and expressive language abilities during the examination, exhibited no signs of a 2 thought disturbance, and displayed both adequate commonsense judgment and a relatively good 3 fund of information for the general population. (Id. 251-52, 254.) 4 5 In contrast to Dr. Sherill’s opinion, Dr. Amado, the reviewing psychiatrist, opined that 6 plaintiff suffers from a learning disability and anxiety and has low-average to borderline intellectual 7 functioning. (A.R. 259, 262.) He further found that these impairments cause difficulties in 8 plaintiff’s ability to maintain social functioning as well as concentration, persistence, or pace. (Id. 9 266.) Although Dr. Amado concluded that plaintiff’s impairments do not significantly limit 10 plaintiff’s functioning, (id. 269-70), he indicated that plaintiff does suffer from a severe 11 impairment. 12 “Impairment(s) Not Severe”).) (Id. 258 (checking the box “RFC Assessment Necessary” instead of the box 13 14 Finally, Dr. K. Lee, Ph.D., LCSW, the only doctor with whom plaintiff had a treating 15 relationship, found that plaintiff suffers from a “major depressive disorder with psychotic features” 16 and a “learning disorder NOS.” (A.R. 346.) Dr. Lee opined that these disorders: moderately limit 17 plaintiff’s activities of daily living and ability to maintain social functioning; frequently limit his 18 ability to maintain concentration, persistence, or pace; and would cause episodes of deterioration 19 or decompensation in a work or work-like setting “once or twice.” (Id. 346, 349.) Although Dr. 20 Lee’s opinion was not presented to the ALJ, it was provided to the Appeals Council, and the Court 21 must consider it in assessing whether there is substantial evidence in the record to support a 22 determination that plaintiff’s claim is groundless. See Brewes v. Comm’r of Soc. Sec., 682 F.3d 23 1157, 1159-60, 1162-63 (2012); see also Webb, 433 F.3d at 688 (“ALJ should have continued the 24 sequential analysis beyond step two because there was no substantial evidence to show that 25 [plaintiff’s] claim was ‘groundless.’” (citations omitted)). 26 27 Defendant urges the Court to disregard Dr. Lee’s opinion because: it is only four-pages 28 long; it is not accompanied by treatment notes supporting Dr. Lee’s conclusions; and Dr. Lee is 7 1 a licensed clinical social worker with a Ph.D, not a medical doctor. (See Joint Stip. at 13.) With 2 regard to defendant’s first suggestion, the Court declines to overlook a treating source’s opinion 3 based solely on its brevity. Additionally, although Dr. Lee’s opinion is not accompanied by 4 treatment notes, Dr. Lee stated that his conclusions are consistent with his treatment notes, which 5 he would be willing to send upon request and receipt of a consent form. (A.R. 347.) Accordingly, 6 if Dr. Lee’s treatment notes are necessary to assess his opinion about the severity of plaintiff’s 7 impairment, the ALJ would be required to request them.4 See Celaya v. Halter, 332 F.3d 1177, 8 1183 (9th Cir. 2003) (“The ALJ always has a ‘special duty to fully and fairly develop the record and 9 to assure that the claimant’s interests are considered.’” (citation omitted)); see also Mayes v. 10 Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (“An ALJ’s duty to develop the record further is 11 triggered only when there is ambiguous evidence or when the record is inadequate to allow for 12 proper evaluation of the evidence.”). 13 14 Further, the fact that Dr. Lee is a licensed social worker with a Ph.D., not a physician, does 15 not bar the Court -- or the ALJ on remand -- from considering his opinion at step two of the 16 sequential analysis.5 (See Joint Stip. at 13.) Defendant is correct that a social worker is not a 17 “medical source” whose opinion can be considered in deciding whether the claimant has an 18 impairment.6 Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010); see 20 19 C.F.R. § 404.1513(a), (d). However, an ALJ may consider a social worker’s opinion in determining 20 the severity of a claimant’s impairment and whether the impairment affects the claimant’s ability 21 to work. 20 C.F.R. § 404.1513(d)-(e). Thus, Dr. Lee’s opinion is evidence bearing on the ALJ’s 22 4 23 24 25 26 Nevertheless, plaintiff may be in a better position if, on remand, he takes responsibility for requesting these notes and submitting them to the ALJ. 5 Dr. Lee’s questionnaire suggests that he is not only a social worker but also a psychologist (see A.R. 349 (signed as “K. Lee PhD LCSW SupvPschSocWrk”) and, therefore, a medical source who can provide evidence to establish an intellectual disability, learning disability, or borderline intellectual functioning. 20 C.F.R. § 404.1513(a)(2). 6 27 28 Again, it may be that, given his Ph.D., Dr. Lee is a licensed or certified psychologist. In that case, an ALJ could consider his opinion as evidence of whether plaintiff has an impairment. See also 20 C.F.R. 404.15153(a)(2) (identifying licensed or certified psychologists as medical sources who can provide evidence to establish an impairment). 8 1 determination under the second step of the sequential analysis, i.e., whether the claimant’s 2 impairment is severe. Further, in view of Dr. Lee’s opinion that plaintiff’s impairment frequently 3 limits his ability to maintain concentration, persistence, or pace and moderately limits his ability 4 to maintain social functioning and perform activities of daily living, it is objective evidence of a 5 severe impairment. Cf. Webb, 433 F.3d at 688 (“[T]here is not, in this instance, the total absence 6 of objective evidence of severe medical impairment.”). Accordingly, the medical evidence is in 7 conflict, and, as a result, the Court cannot find that there is substantial evidence to support a 8 finding that the medical evidence clearly establishes the absence of a severe impairment. 9 10 In reaching this conclusion, the Court does not express an opinion about the viability of 11 plaintiff’s application for benefits. However, plaintiff’s borderline performance on some of Dr. 12 Sherill’s tests, the opinion of the reviewing psychiatrist that plaintiff has a severe impairment, and 13 the opinion of plaintiff’s treating source that, inter alia, plaintiff’s impairment frequently limits his 14 ability to maintain concentration, persistence, or pace and would cause one or two episodes of 15 decompensation in a work-like setting is sufficient evidence of a severe impairment to pass the 16 de minimis threshold of step two.7 See Webb, 433 F.3d at 687. Accordingly, remand is required 17 so that the ALJ may continue the sequential analysis beyond step two.8 See McLeod v. Astrue, 18 7 19 20 21 22 23 This medical evidence is also consistent with plaintiff’s testimony and reports that he: has been unable to hold a job for more than a few months at a time (A.R. 59-61, 73); frequently forgets where he is (id. 206); would forget where to go and which rooms to clean when he was a school custodian (id. 59); cannot read books, including comic books (id. 58); could not do the basic written work required for employment as a school custodian and as a security guard (id. 59-60); and relies on his girlfriend to do his time sheets and manage his finances, because he cannot do simple math (id. 58, 64). (See also A.R. 18 (“[Plaintiff] reports that he experiences routine lapses in memory. For example, he testified that he has become lost while going out in the community.”).) 8 24 25 26 27 28 The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court’s discretion. Harman v. Apfel, 211 F.3d 1172, 117578 (9th Cir. 2000). Under the “credit-as-true” rule, a district court should direct an immediate award of benefits when: “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1018 (9th Cir. Jul. 1, 2014); see also Harman, 211 F.3d at 1179 (“[T]he decision of whether to remand for further proceedings turns upon the likely utility of such proceedings.”). However, remand is warranted where, as 9 1 640 F.3d 881, 888 (9th Cir. 2011) (remand is appropriate where there is a substantial likelihood 2 that the ALJ’s consideration of additional evidence submitted to the Appeals Council could alter 3 the ALJ’s analysis). 4 CONCLUSION 5 6 7 For the foregoing reasons, IT IS ORDERED that the Commissioner’s decision is REVERSED, 8 and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and 9 Order. 10 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant. 11 12 DATED: January 16, 2015 13 14 15 MARGARET A NAGLE A. UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 here, there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated. See Harman, 211 F.3d at 1179-81; see also Garrison, 2014 WL 3397218, at *21 (courts are required to remand for further proceedings when “even though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled”). 10
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