Jesus Vasquez-Pamplona v. Carolyn W. Colvin, No. 2:2014cv07284 - Document 26 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. For the foregoing reasons, 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. LET JUDGMENT BE ENTERED ACCORDINGLY. See Order for details. (dml)
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Jesus Vasquez-Pamplona v. Carolyn W. Colvin Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JESUS VASQUEZ-PAMPLONA, 12 Plaintiff, 13 14 15 v. Case No. CV 14-7284 JC MEMORANDUM OPINION AND ORDER OF REMAND CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. 19 SUMMARY On September 23, 2014, Jesus Vasquez-Pamplona (“plaintiff”) filed a 20 Complaint seeking review of the Commissioner of Social Security’s denial of 21 plaintiff’s applications for benefits. The parties have consented to proceed before 22 the 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; September 26, 2014 Case Management Order ¶ 5. 27 /// 28 /// 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 March 27, 2012, plaintiff filed applications for Supplemental Security 7 Income and Disability Insurance Benefits. (Administrative Record (“AR”) 14, 8 106, 108). Plaintiff asserted that he became disabled on May 7, 2010, due to 9 chronic low back pain, herniated disc on lumbar spine, chronic pain in both legs, 10 and high blood pressure (AR 129). The ALJ examined the medical record and 11 heard testimony from plaintiff (who was not represented), two medical experts, 12 and a vocational expert on March 26, 2013. (AR 27-43). 13 On April 2, 2013, the Administrative Law Judge (“ALJ”) determined that 14 plaintiff was not disabled through the date of the decision. (AR 14-23). 15 Specifically, the ALJ found: (1) plaintiff suffered from the following severe 16 impairments: hypertension, back disorder, and major depressive disorder (AR 16); 17 (2) plaintiff’s impairments, considered singly or in combination, did not meet or 18 medically equal a listed impairment (AR 18-19); (3) plaintiff retained the residual 19 functional capacity to perform less than the full range of medium work (20 C.F.R. 20 §§ 404.1567(c), 416.967(c)) with additional limitations1 (AR 19); (4) plaintiff 21 could not perform any past relevant work (AR 22); (5) there are jobs that exist in 22 significant numbers in the national economy that plaintiff could perform, 23 specifically industrial cleaner, linen room attendant, and laboratory equipment 24 cleaner (AR 22-23); and (6) plaintiff’s allegations regarding the intensity, 25 26 27 28 1 The ALJ determined that plaintiff: (i) could lift and carry up to 50 pounds occasionally and 25 pounds frequently; (ii) could stand and walk up to 6 hours in an 8-hour day; (iii) could sit up to 6 hours in an 8-hour day; and (iv) was limited to occasional contact with coworkers and supervisors, and less than occasional contact with the public. (AR 19). 2 1 persistence, and limiting effects of his subjective symptoms could not be fully 2 credited (AR 22). 3 The Appeals Council denied plaintiff’s application for review. (AR 1). 4 III. APPLICABLE LEGAL STANDARDS 5 A. 6 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 7 unable “to engage in any substantial gainful activity by reason of any medically 8 determinable physical or mental impairment which can be expected to result in 9 death or which has lasted or can be expected to last for a continuous period of not 10 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 11 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The 12 impairment must render the claimant incapable of performing the work the 13 claimant previously performed and incapable of performing any other substantial 14 gainful employment that exists in the national economy. Tackett v. Apfel, 180 15 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 16 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 17 sequential evaluation process: 18 (1) so, the claimant is not disabled. If not, proceed to step two. 19 20 Is the claimant presently engaged in substantial gainful activity? If (2) Is the claimant’s alleged impairment sufficiently severe to limit 21 the claimant’s ability to work? If not, the claimant is not 22 disabled. If so, proceed to step three. 23 (3) Does the claimant’s impairment, or combination of 24 impairments, meet or equal an impairment listed in 20 C.F.R. 25 Part 404, Subpart P, Appendix 1? If so, the claimant is 26 disabled. If not, proceed to step four. 27 /// 28 /// 3 1 (4) Does the claimant possess the residual functional capacity to 2 perform claimant’s past relevant work? If so, the claimant is 3 not disabled. If not, proceed to step five. 4 (5) Does the claimant’s residual functional capacity, when 5 considered with the claimant’s age, education, and work 6 experience, allow the claimant to adjust to other work that 7 exists in significant numbers in the national economy? If so, 8 the claimant is not disabled. If not, the claimant is disabled. 9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920); see also Molina, 674 F.3d at 11 1110 (same). 12 The claimant has the burden of proof at steps one through four, and the 13 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 14 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch 15 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of 16 proving disability). 17 B. 18 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 19 benefits only if it is not supported by substantial evidence or if it is based on legal 20 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 21 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 22 (9th Cir. 1995)). Courts review only the reasons provided in the ALJ’s decision, 23 and the decision may not be affirmed on a ground upon which the ALJ did not 24 rely. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. 25 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 26 Substantial evidence is “such relevant evidence as a reasonable mind might 27 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 28 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but 4 1 less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 2 911 F.2d 180, 183 (9th Cir. 1990)). To determine whether substantial evidence 3 supports a finding, a court must “‘consider the record as a whole, weighing both 4 evidence that supports and evidence that detracts from the [Commissioner’s] 5 conclusion.’” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) 6 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can 7 reasonably support either affirming or reversing the ALJ’s conclusion, a court may 8 not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing 9 Flaten, 44 F.3d at 1457). 10 Even when an ALJ’s decision contains error, it must still be affirmed if the 11 error was harmless. Treichler v. Commissioner of Social Security Administration, 12 775 F.3d 1090, 1099 (9th Cir. 2014). An ALJ’s error is harmless if (1) it was 13 inconsequential to the ultimate nondisability determination; or (2) the ALJ’s path 14 may reasonably be discerned, even if the ALJ explains the ALJ’s decision with 15 less than ideal clarity. Id. (citation, quotation marks and internal quotations marks 16 omitted). 17 A reviewing court may not make independent findings based on the 18 evidence before the ALJ to conclude that the ALJ’s error was harmless. Brown19 Hunter v. Colvin, __ F.3d __, 2015 WL 462013, *3 (9th Cir. Aug. 4, 2015) (No. 20 13-15213)2 (citing Stout, 454 F.3d at 1054); see also Marsh v. Colvin, 792 F.3d 21 1170, 1172 (9th Cir. 2015) (district court may not use harmless error analysis to 22 affirm decision on ground not invoked by ALJ) (citation omitted). Where a 23 reviewing court cannot confidently conclude that an error was harmless, a remand 24 for additional investigation or explanation is generally appropriate. See Marsh, 25 792 F.3d at 1173 (remanding for additional explanation where ALJ ignored 26 treating doctor’s opinion and court not could not confidently conclude ALJ’s error 27 28 2 The Court takes judicial notice of the Ninth Circuit’s docket in Brown-Hunter which reflects that a petition for rehearing is pending in such case. Fed. R. Evid. 201. 5 1 was harmless); Treichler, 775 F.2d at 1099-1102 (where agency errs in reaching 2 decision to deny benefits and error is not harmless, remand for additional 3 investigation or explanation ordinarily appropriate). 4 C. 5 In Social Security cases, courts give varying degrees of deference to Evaluation of Medical Opinion Evidence 6 medical opinions depending on the type of physician who provided them, namely 7 “treating physicians,” “examining physicians,” and “nonexamining physicians.” 8 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citation and quotation 9 marks omitted). A treating physician’s opinion is generally given the most weight, 10 and may be “controlling” if it is “well-supported by medically acceptable clinical 11 and laboratory diagnostic techniques and is not inconsistent with the other 12 substantial evidence in [the claimant’s] case record[.]” 20 C.F.R. 13 §§ 404.1527(c)(2), 416.927(c)(2); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 14 2007) (citations and quotation marks omitted). An examining, but non-treating 15 physician’s opinion is entitled to less weight than a treating physician’s, but more 16 weight than a nonexamining physician’s opinion. Garrison, 759 F.3d at 1012 17 (citation omitted). 18 An ALJ may reject the uncontroverted opinion of a treating or examining 19 physician by providing “clear and convincing reasons that are supported by 20 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) 21 (citation omitted). Where a treating or examining physician’s opinion is 22 contradicted by another doctor’s opinion, an ALJ may reject the treating/ 23 examining opinion only “by providing specific and legitimate reasons that are 24 supported by substantial evidence.” Garrison, 759 F.3d at 1012 (citation and 25 footnote omitted). 26 An ALJ may provide “substantial evidence” for rejecting a medical opinion 27 by “setting out a detailed and thorough summary of the facts and conflicting 28 clinical evidence, stating his [or her] interpretation thereof, and making findings.” 6 1 Id. (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)) (quotation 2 marks omitted); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (same) 3 (citations omitted); see also Magallanes v. Bowen, 881 F.2d 747, 751, 755 (ALJ 4 need not recite “magic words” to reject a treating physician opinion – court may 5 draw specific and legitimate inferences from ALJ’s opinion). An ALJ “must do 6 more than offer [] conclusions.” Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 7 1988); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (“broad and 8 vague” reasons for rejecting treating physician’s opinion insufficient) (citation 9 omitted). “[The ALJ] must set forth his [or her] own interpretations and explain 10 why they, rather than the [physician’s], are correct.” Embrey, 849 F.2d at 421-22. 11 California workers’ compensation disability ratings are not controlling in 12 Social Security cases since the terms of art used in each statutory scheme are not 13 equivalent. See Booth v. Barnhart, 181 F. Supp. 2d 1099, 1104 (C.D. Cal. 2002) 14 (citing Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996); Desrosiers v. Secretary 15 of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 1988)).3 Nonetheless, 16 an ALJ may not disregard a medical opinion simply because it was initially 17 generated in a workers’ compensation case, or because the opinion is couched in 18 worker’s compensation terminology. Booth, 181 F. Supp. 2d at 1105 (citations 19 omitted). Instead, an ALJ must evaluate the objective medical findings in such 20 opinions “just as he or she would [for] any other medical opinion.” Id. at 1105-06 21 22 23 24 25 26 27 28 3 For example, while a California workers’ compensation claimant who is incapable of performing “heavy” work may still be able to perform “light,” “semi-sedentary,” or “sedentary” work, none of these categories of work is based on strength. Desrosiers, 846 F.2d at 576. Such workers’ compensation categories entail only a “minimum of demands for physical effort,” and “turn on whether a claimant sits, stands, or walks for most of the day.” Id. (citation omitted); see also Glass v. Workers’ Compensation Appeals Board, 105 Cal. App. 3d 297, 302 (1980) n.1 (quoting and discussing the “Schedule for Rating Permanent Disabilities Under Provisions of the Labor Code of the State of California”). The categories of work under the Social Security disability scheme, however, are “measured quite differently” since they “are differentiated primarily by step increases in lifting capacities.” Desrosiers, 846 F.2d at 576. 7 1 (an ALJ entitled to draw inferences which “logically flow[] from” findings in 2 workers’ compensation medical opinions) (citations omitted). 3 A Social Security decision must, however, reflect that the ALJ properly 4 considered the pertinent distinctions between the state and federal statutory 5 schemes, and that the ALJ accurately assessed the implications medical findings 6 drawn from a workers’ compensation opinion may have for purposes of a Social 7 Security disability determination. Id. at 1106 (citation omitted). While an ALJ’s 8 decision need not provide an explicit “translation,” it should at least reflect “that 9 the ALJ recognized the differences between the relevant state workers’ 10 compensation terminology, on the one hand, and the relevant Social Security 11 disability terminology, on the other hand, and took those differences into account 12 in evaluating the medical evidence.” Id.; see, e.g., Desrosiers, 846 F.2d at 576 13 (finding ALJ’s interpretation of treating physician’s opinion erroneous where 14 record clear that ALJ affirmatively failed to consider distinction between 15 categories of work under social security disability scheme versus workers’ 16 compensation scheme). 17 IV. DISCUSSION 18 In the September 16, 2010 report of a Primary Treating Physician’s Initial 19 Orthopedic Evaluation of plaintiff, Dr. Khalid B. Ahmed, a treating physician for 20 plaintiff’s workers’ compensation case, diagnosed plaintiff with chronic pain 21 syndrome secondary to lumbar disc herniation with radiculitis-radiculopathy 22 (bilaterally), and opined, among other things, that plaintiff’s “[w]ork restrictions 23 would be no repetitive bending, stooping, or heavy lifting” (“Dr. Ahmed’s 24 Opinions”). (AR 222). The parties essentially agree that the ALJ’s decision did 25 not specifically address Dr. Ahmed’s Opinions regarding such “work restrictions.” 26 (Plaintiff’s Motion at 8; Defendant’s Motion at 4). Defendant contends that a 27 remand is not warranted, however, because any error in the foregoing respect was 28 harmless. (Defendant’s Motion at 4-6). The Court disagrees. 8 1 First, since the ALJ’s decision never addressed the pertinent distinctions 2 between the terms of art applicable to plaintiff’s California workers’ compensation 3 claim and plaintiff’s Social Security disability claim, the Court cannot find that the 4 ALJ adequately considered and accurately accounted for the true functional 5 significance of the restrictions in Dr. Ahmed’s Opinions (i.e., preclusion from 6 repetitive bending, stooping, or heavy lifting). It is not reasonable to infer, as 7 defendant suggests (Defendant’s Motion at 5), that the failure expressly to address 8 Dr. Ahmed’s Opinions was harmless simply because the ALJ’s decision 9 considered Dr. Ahmed’s other progress notes for plaintiff or the opinions of a 10 consultative examining physician that were consistent with the ALJ’s residual 11 functional capacity assessment. 12 Second, even if functional limitations related to preclusion from “repetitive 13 bending, stooping, or heavy lifting” could essentially be considered the same for 14 purposes of both California workers’ compensation and Social Security disability 15 cases, the Court cannot conclude that the failure expressly to address Dr. Ahmed’s 16 Opinions was immaterial in this case. At a minimum, the ALJ completely failed to 17 account for preclusion from repetitive stooping or bending in his residual 18 functional capacity assessment and also failed to include such restrictions in the 19 hypothetical question he posed to the vocational expert at the hearing. (AR 19, 20 40-41). Since the ALJ posed an incomplete hypothetical question to the 21 vocational expert, the vocational expert’s testimony based on such incomplete 22 hypothetical, which the ALJ adopted, could not serve as substantial evidence 23 supporting the ALJ’s determination at step five that plaintiff could perform the 24 occupations of industrial cleaner, linen room attendant, and laboratory equipment 25 cleaner. See Robbins, 466 F.3d at 886. Since defendant points to no persuasive 26 evidence in the record which could support the ALJ’s determination at step five 27 that plaintiff was not disabled, the Court cannot confidently conclude that no 28 /// 9 1 reasonable ALJ could have reached a different disability determination absent the 2 ALJ’s errors. Finally, although, as defendant suggests, the ALJ may ultimately decide to 3 4 reject Dr. Ahmed’s Opinions as inconsistent with the treating physician’s 5 generally conservative treatment of plaintiff, see Rollins v. Massanari, 261 F.3d 6 853, 856 (9th Cir. 2001) (ALJ properly rejected opinion of treating physician 7 where physician had prescribed conservative treatment and the plaintiff’s activities 8 and lack of complaints were inconsistent with the physician’s disability 9 assessment), the ALJ did not do so in the instant administrative decision. This 10 Court may not affirm a Social Security decision under the rubric of harmless error 11 based on a ground that the ALJ did not invoke. Marsh, 792 F.3d at 1172 (citations 12 omitted); see also Orn, 495 F.3d at 630 (“We review only the reasons provided by 13 the ALJ in the disability determination and may not affirm the ALJ on a ground 14 upon which he did not rely.”) (citation omitted). Accordingly, this case must be remanded to permit the ALJ properly to 15 16 consider the medical opinion evidence. 17 V. CONCLUSION4 18 For the foregoing reasons, the decision of the Commissioner of Social 19 Security is reversed in part, and this matter is remanded for further administrative 20 action consistent with this Opinion. 21 LET JUDGMENT BE ENTERED ACCORDINGLY. 22 DATED: September 30, 2015 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 4 The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s decision, except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. 10
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