Sara L. Ramos v. Carolyn W. Colvin, No. 2:2014cv08829 - Document 31 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish. For the foregoing reasons, IT IS ORDERED that Judgment be entered REVERSING the Commissioner's decision and REMANDING this matter for further administrative proceedings consistent with this Memorandum Opinion and Order. (ec)
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Sara L. Ramos v. Carolyn W. Colvin Doc. 31 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 SARA L. RAMOS, 9 Case No. 2:14-cv-8829 (GJS) Plaintiff 10 v. 11 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 12 MEMORANDUM OPINION AND ORDER Defendant. 13 INTRODUCTION 14 15 Plaintiff Sara L. Ramos filed a complaint seeking review of the Commissioner’s 16 denial of her application for disability insurance benefits and supplemental security 17 income. In the Joint Stipulation, Ramos raises two claims of error: (1) that the 18 Administrative Law Judge (“ALJ”) erred by determining that Ramos did not qualify 19 for benefits at Step Three—specifically under Listed Impairment 12.05C,1 and (2) 20 21 1 22 23 24 25 26 27 28 To decide if a claimant is entitled to benefits, an ALJ ordinarily conducts a fivestep inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows: (1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two; (2) Is the claimant’s impairment severe? If not, the claimant is found not disabled. If so, proceed to step three; (3) Does the claimant’s impairment meet or equal the requirements of any impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is found disabled. If not, proceed to step four; (4) Is the claimant capable of performing his past work? If so, the claimant is found not disabled. If not, proceed to step five; (5) Is the claimant able to do any other work? If not, the claimant is found disabled. If so, the claimant is found not disabled. 20 C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). Dockets.Justia.com 1 that at Step 5, the ALJ erred by finding that someone with Ramos’s residual 2 functional capacity (“RFC”), as limited by Dr. Borden’s testimony that Ramos could 3 perform only one- and two- step jobs, could perform the positions of Marker II and 4 Production Assembler. 5 6 For the reasons that follow, the Court remands for further administrative proceedings. 7 8 PROCEDURAL HISTORY 9 On January 14, 2010, Ramos filed applications alleging disability as of August 10 21, 2009. [Admin. Rec. (“AR”) 303-09.] Her claims were initially denied on May 11 21, 2010. [AR 191-95.] A hearing was conducted on August 18, 2010, after which 12 the ALJ denied Ms. Ramos’s application. [AR 144, 172-185.] The Appeals 13 Council reversed and remanded for further proceedings on January 17, 2012. [AR 14 186-89.] A different ALJ was appointed, and hearings were held on August 8, 2012 15 and April 24, 2013. [AR 46-109, 110-144.] On May 30, 2012, the ALJ found 16 Ramos not to be disabled. [AR 17-39.] 17 18 Ramos sought review in the Appeals Council, who denied her request on September 29, 2014. [AR 1-6.] This case followed. 19 20 GOVERNING STANDARD 21 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 22 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 23 and (2) the Commissioner used correct legal standards. See Carmickle v. 24 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 25 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 26 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 27 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also 28 Hoopai, 499 F.3d at 1074. 2 1 Even if Ramos shows that the ALJ committed legal error, “[r]eversal on account 2 of error is not automatic, but requires a determination of prejudice.” Ludwig v. 3 Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). “[T]he burden of showing that an error 4 is harmful normally falls upon the party attacking the agency’s determination.” 5 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Shinseki v. Sanders, 6 556 U.S. 396, 409 (2009)). And “[w]here harmfulness of the error is not apparent 7 from the circumstances, the party seeking reversal must explain how the error 8 caused harm.” McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011). 9 That said, the burden of showing harm is still low. “Where the circumstances of 10 the case show a substantial likelihood of prejudice, remand is appropriate so that the 11 agency can decide whether reconsideration is necessary. By contrast, where 12 harmlessness is clear and not a borderline question, remand for reconsideration is 13 not appropriate.” Id. at 888. Courts have “affirmed under the rubric of harmless 14 error where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ’s 15 ultimate disability conclusion.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 16 1055 (9th Cir. 2006). In sum, “ALJ errors in social security cases are harmless if 17 they are ‘inconsequential to the ultimate nondisability determination’ and … ‘a 18 reviewing court cannot consider [an] error harmless unless it can confidently 19 conclude that no reasonable ALJ, when fully crediting the testimony, could have 20 reached a different disability determination.’” Marsh v. Colvin, 792 F.3d 1170, 21 1173 (9th Cir. July 10, 2015) (quoting Stout, 454 F.3d at 1055-56). 22 To determine whether an error was harmless, this Court may consider “the 23 likelihood that the result would have been different” and “the impact of the error on 24 the public perception of such proceedings.” Ludwig, 681 F .3d at 1054. It may not, 25 however, “appl[y] harmless error in a way that affirm[s] the agency on a ground not 26 invoked by the ALJ.” Marsh, 792 F.3d at 1172. Ultimately, “[t]he nature of [the] 27 application [of the harmless error doctrine] is fact-intensive—‘no presumptions 28 3 1 operate’ and ‘[the Court] must analyze harmlessness in light of the circumstances of 2 the case.’” Id. (quoting Molina, 674 F.3d at 1121). 3 DISCUSSION 4 I. The ALJ’s Conclusion that Ms. Ramos Did Not Qualify For Listed 5 Impairment 12.05C is Supported by Substantial Evidence. 6 Here, Ramos asks this Court to find that the record indisputably supports a 7 8 finding that she fell within Listing 12.05C. If Ramos is correct, the five-step inquiry 9 stops, and she “is presumed unable to work and is awarded benefits without a 10 determination whether [s]he actually can perform [her] own prior work or other 11 work.” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (quoting Sullivan v. 12 Zebley, 493 U.S. 521, 531 (1990)) (internal quotation marks omitted)). “Listing 12.05C has three main components: (1) subaverage intellectual 13 14 functioning with deficits in adaptive functioning initially manifested before age 22; 15 (2) an IQ score of 60 to 70; and (3) a physical or other mental impairment causing 16 an additional and significant work-related limitation.” Id. “A claimant must 17 ‘present medical findings equal in severity to all the criteria for the one most similar 18 listed impairment.’” Kennedy, 738 F.3d at 1174 (quoting Sullivan, 493 U.S. at 531). 19 The issues before the Court here are quite narrow. The Commissioner does not 20 contest that the third prong is satisfied.2 The Commissioner also does not contend 21 22 23 24 25 26 27 28 2 The record independently supports a finding of a significant work-related limitation “when its effect on a claimant’s ability to perform basic work activities is more than slight or minimal.” Fanning v. Bowen, 827 F.2d 631, 633 (9th Cir. 1987). The Ninth Circuit also adopted another circuit’s conclusion that a “finding of severity automatically satisfied the more than slight or minimal effect standard.” Id. at 633 n.3 (emphasis added) (citing Nieves v. Sec’y of Health & Human Servs., 775 F.2d 12, 14 (1st Cir. 1985)). But cf. McGill v. Callahan, 127 F.3d 1105 (9th Cir. 1997) (assuming arguendo “that a severe impairment at step two of the sequential disability analysis necessarily satisfies Listing 12.05C”). Thus, the ALJ’s finding of, among other severe impairments, obesity, was significant to satisfy this 4 1 that, if valid, Ramos’s IQ scores fall between 60 and 70. Thus, the core of the 2 parties’ dispute is (1) whether the ALJ properly rejected the IQ score results as 3 invalid, and (2) whether Ramos’s mental impairment manifested before age 22. 4 When considering whether Listing 12.05C applied, the ALJ found that it was 5 appropriate to “discount the claimant’s test results” because her “performance on 6 objective testing did not represent the claimant’s full capacity, based on the 7 observations of both of the consultative examiners.” [AR 26.] Specifically, the ALJ 8 summarized Ramos’s IQ tests as follows: Although not clearly malingering, the claimant has been described as exhibiting poor effort on examination. In particular, Dr. Colonna observed that the claimant provided fair to poor effort on testing, and that she tended to give up easily during the course of testing (Exhibit 8F, pp. 3, 5). Similarly, Dr. Sherrill noted that the claimant presented with questionable and sub-optimal effort during her examination, and she did not appear to be cooperating with the testing (Exhibit 14F, pp. 1, 5). 9 10 11 12 13 14 15 16 17 [AR 32.] The Ninth Circuit has given little guidance about when it is appropriate to find an 18 IQ score to be invalid, although it has expressed in an unpublished opinion that 19 “[t]he regulations’ inclusion of the word ‘valid’ in Listing 12.05C makes the ALJ’s 20 authority clear” to “decide that an IQ score is invalid.” Thresher v. Astrue, 283 Fed. 21 App’x 473, 475 (9th Cir. 2008); see also id. n.6 (“We have never decided what 22 information is appropriately looked to in deciding validity.”). And somewhat more 23 recently, the Ninth Circuit expressly affirmed an ALJ’s conclusion that IQ test 24 results were invalid where the doctors “reported poor motivation in IQ testing, 25 26 27 28 prong so long as it caused different work-related limitations than those caused by inhibited mental development. 5 1 which decreased the reliability of the IQ tests.” Gray v. Comm’r of Soc. Sec. 2 Admin., 365 Fed. App’x 60, 62 (9th Cir. 2010). 3 The Court concludes that the ALJ’s finding discounting the IQ scores as invalid 4 is supported by substantial evidence. The first psychological evaluation was 5 conducted by clinical psychologist Dr. Rosa Colonna on April 23, 2011. [AR 492- 6 99.] Although the result was a full scale IQ determination of 67, Colonna explained 7 that “[t]he test results appear to be an underestimation of the claimant’s ability at 8 this time due to inconsistent effort.” [AR 498.] Dr. Colonna further explained that 9 Ramos’s “overall cognitive ability falls within the borderline range although scores 10 fall in the mentally deficient range.” [Id.] In other words, Dr. Colonna herself 11 provided the basis for concluding that the IQ score was not valid or representative, 12 and that some upward adjustment would be appropriate. The ALJ was entitled to 13 rely on Dr. Colonna’s determination. [See AR 32.] 14 So too with Dr. Lou Ellen Scherrill’s evaluation. [AR 598-606.] Performed on 15 May 1, 2012, this psychological evaluation resulted in a full scale IQ score of 57. 16 [AR 603.] Like Colonna, Scherrill explained that she viewed the score as “an 17 underestimation of this claimant’s abilities” because “[i]t appeared that this claimant 18 was not putting forth her best effort.” [Id.] Scherrill also noted that Ramos’s 19 “scores are inconsistent with her receptive and expressive language skills,” and that 20 “[i]t is estimated that she at least functions in the Borderline Range of intellectual 21 development and has adequate memory capabilities.” [AR 604.] The ALJ was 22 equally entitled to rely on Scherrill’s own conclusions about the validity of the IQ 23 score she derived. [See AR 32.] Even if the Court had doubts about these 24 conclusions (which it does not), “[w]here ‘the evidence can reasonably support 25 either affirming or reversing a decision, [the Court] may not substitute [its] 26 27 28 6 1 judgment for that of the [ALJ].’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2 2014) (citations omitted).3 3 Ramos presents essentially three arguments to undermine the substantial 4 evidence supporting the ALJ’s determination. First, Ramos attempts to decry 5 Sherrill’s report as biased, but the argument is a red herring. Even if Ramos’s 6 contention were accepted, the ALJ and the Court still have no valid IQ score 7 between 60 and 70 on which to find prong two satisfied, and would be left with Dr. 8 Colonna’s report, which like Dr. Sherrill’s, finds that Ramos’s IQ score was 9 underestimated. Second, Ramos argues essentially that she is not smart enough to fake her own 10 11 mental deficiency. At best, this is an argument on how the ALJ might choose to 12 weigh the evidence. The Court will not transform the substantial evidence standard 13 into a fresh evaluation of the record. Finally, Ramos argues that the sum of the evidence shows that Ramos performs 14 15 below the borderline level to which Drs. Colonna and Sherrill estimated her 16 capacity. This argument is irrelevant because Ramos still would not be entitled to 17 the benefit of a finding of impairment under Listing 12.05C. Under Zebley and 18 Kennedy, claimants must demonstrate that they “equal each criterion of Listing 19 12.05C rather than rely[] on overall functional impact.” Kennedy, 738 F.3d at 1176; 20 see also id. at 1177 (discussing Brouse v. Chater, 161 F.3d 11, 1998 WL 567964, at 21 *2 (9th Cir. 1998) (“In another case quite similar to the situation here, we 22 considered the medical equivalency doctrine so well established that we affirmed 23 the ALJ’s finding of nonequivalency in a non-precedential disposition, holding that 24 25 26 27 28 3 Dr. Betty Borden testified about the reports. [AR 123-30.] The ALJ was permitted to rely on her opinion as contributing substantial evidence, but it could not stand alone. Nonetheless, the Court finds her evaluation of the IQ scores to be reasonable. 7 1 a claimant with an IQ over 70 did not show that she equaled Listing 12.05C.”)). In 2 short, even accepting Ramos’s argument here does not create a valid IQ score under 3 70.4 4 II. Remand is Appropriate to Resolve an Ambiguity in the Record About the 5 ALJ’s Rejection of the “One- to Two- Step Instruction” Limitation in 6 Ramos’s RFC. After consideration of the medical evidence, the ALJ devised the following RFC 7 8 for Ramos: lift and carry 20 pounds occasionally and 10 pounds frequently, and stand and walk for four hours in an eighthour workday. She can occasionally perform postural activities. She can occasionally climb stairs and ramps. She can occasionally perform overhead activities. The claimant can also occasionally push and pull with her left lower extremity. The claimant must not have concentrated exposure to dust, fumes, or gases. The claimant must not have exposure to extreme temperatures. The claimant cannot climb ladders, ropes, or scaffolds. The claimant must not be exposed to heights or hazards. In addition, the claimant can perform simple work, with occasional contact with the public and with peers. 9 10 11 12 13 14 15 16 17 18 19 [AR 26 (emphasis added).] Although Ramos couches her claim of error as a 20 problem with the vocational expert’s job identification, her real complaint is that the 21 ALJ’s RFC limitation of “perform[ing] simple work” should have been further 22 refined to “performing one- or two- step jobs” based on Dr. Borden’s testimony. 23 The Court finds that remand is appropriate for the ALJ to clarify his decision on this 24 point. 25 26 27 28 4 Because the ALJ’s opinion properly rejected Ramos’s IQ scores, rendering Listing 12.05C inapplicable, the Court does not analyze the first prong. 8 1 2 3 A. The ALJ’s Opinion and Hearing Testimony 1. The Hearing Testimony At the August 8, 2012 hearing, Dr. Borden testified that she believed that Ramos 4 “would be limited to simple repetitive tasks” “based on [Ramos’s] borderline 5 intellectual functioning” and “limited to occasional contact with others … [and] the 6 public” based on “mood disorder.” [AR 125.] Borden clarified that she meant 7 “simple tasks” to mean one- to two- step instructions and tasks. [AR 140.] 8 9 Thereafter, vocational expert Jane Haile testified that Ramos could perform the positions of “Marker II” and “Production Assembler,” which she identified as 10 reasoning level 2 jobs. [AR 141, 142; see AR 132.] Haile distinguished Reasoning 11 Level 1 as “apply[ing] common sense, understanding, carry[ing] out simple one or 12 two step instructions” from Level 2 where one “appl[ies] common sense, 13 understanding, to carry out detailed but involved written or oral instruction.” [AR 14 141, 142.] The vocational expert testified that there were not “reasoning level 1 jobs 15 that would satisfy the first hypothetical,” i.e., the hypothetical matching the ultimate 16 RFC determination. [AR 142; see AR 131.] Before accounting for the “up to 25 17 percent” erosion based on Ramos’s RFC, the vocational expert found that there were 18 approximately 33,000 Marker II jobs and 24,000 Production Assembler jobs 19 available nationally and locally, 1,000 and 800, respectively. [AR 132.] 20 2. The ALJ’s Opinion 21 The mental RFC—the part at issue here—was based on (1) the testimony of Dr. 22 Borden (a consultative examiner), whom the ALJ afforded greater weight under 20 23 C.F.R. §§ 416.927(d)(3)&(6), (2) the opinion of consultative examining 24 psychologist Dr. Colonna, whom the ALJ afforded great weight, (3) the opinion of 25 consultative examining psychologist Dr. Sherrill, whom the ALJ afforded great 26 weight, (4) Ramos’s treatment records, and (5) the opinion of a treating physician 27 whom the ALJ gave little weight. [AR 30.] Of note, the Court believed all three 28 9 1 doctors’ opinions to be consistent with one another, and Ramos does not challenge 2 the weighing of each of these sources. 3 With the RFC mentioned above, supra at 8, the ALJ concluded that Ramos could 4 perform the positions of Marker II and Production Assembler, which are Reasoning 5 Level 2 jobs. [AR 33-34.] The ALJ also accepted “an erosion of up to 25 percent” 6 based on the RFC, but still concluded that other work “existed in significant 7 numbers in the national economy.” [AR 34.] 8 B. Discussion 9 The issue before the Court is again narrow: was the ALJ required to equate 10 “simple work” with GED Reasoning Level 1? The short answer is “no,” but in 11 deciding not to do so, the ALJ must explain why. Accordingly, remand is 12 appropriate. 13 At the outset, the Commissioner is correct that it is the ALJ’s responsibility and 14 duty to translate the medical and nonmedical evidence into an RFC. Stubbs- 15 Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). In performing that task, 16 however, when faced with limitations offered without contradiction, an ALJ must 17 “include[] these limitations in his RFC []or explain[] why he rejected them.” Van 18 Sickle v. Astrue, 385 Fed. App’x 739, 741 (9th Cir. 2010) (citing Widmark v. 19 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)). Here, the ALJ neither included nor 20 expressly rejected a “one- to two- step instruction” limitation. On its face, the ALJ’s 21 opinion would appear to support including such a limitation, given that he found Dr. 22 Borden’s opinion to carry more weight than any other medical expert opining on 23 Ramos’s mental condition. Yet the remainder of the analysis—including the 24 evaluation of the vocational expert’s testimony—suggests he rejected the GED 25 Reasoning Level 1 limitation. The Court is not sure why, and for that reason, finds 26 the case suitable for further consideration. The Court has considered whether the 27 award of benefits would be appropriate here. Although a close call, the Court 28 concludes that remand is appropriate for limited further administrative proceedings. 10 1 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101, 1105 (9th Cir. 2014) 2 (“Administrative proceedings are generally useful where the record has not been 3 fully developed, there is a need to resolve conflicts and ambiguities, or the 4 presentation of further evidence may well prove enlightening in light of the passage 5 of time.” (internal quotation marks, citations, brackets, and ellipsis omitted)). Nonetheless, the remand is a narrow one.5 If the ALJ finds that Ramos is limited 6 7 to jobs requiring “one- or two- step instructions,”6 he must also find that Ramos’s 8 RFC limited her to GED Reasoning Level 1 jobs under Rounds v. Comm’r, Soc. Sec. 9 Admin., 795 F.3d 1177, 1182-83 (9th Cir. Aug. 4, 2015). Given that the vocational 10 expert already testified that no jobs exist for someone with Ramos’s modified GED 11 Reasoning Level 1 RFC, the ALJ must then award benefits. Alternatively, the ALJ may decide to reject Dr. Borden’s conclusion that Ramos 12 13 is limited to jobs requiring “one- or two- step instructions, if the ALJ gives a valid 14 reason to do so. In that case, the “simple work” limitation may be permissibly read 15 to encompass GED Reasoning Level 2 jobs, such as those the vocational expert 16 identified, and denial of benefits is appropriate. 17 // 18 // CONCLUSION 19 20 For the foregoing reasons, IT IS ORDERED that Judgment be entered 21 REVERSING the Commissioner’s decision and REMANDING this matter for 22 23 24 25 26 27 28 5 Notwithstanding the outcome, the Court finds this ALJ’s opinion to have been particularly thorough and well reasoned. 6 Alternatively, the ALJ could permissibly conclude that the “simple work” limitation in the current RFC means “one- to two- step instructions,” which is functionally equivalent. 11 1 further administrative proceedings consistent with this Memorandum Opinion and 2 Order. 3 4 5 DATED: November 17, 2015 __________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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