Eva Arenas v. Carolyn W. Colvin, No. 2:2014cv09117 - Document 24 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is VACATED, and the matter is REMANDED, without benefits, for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See Order for complete details) (afe)
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Eva Arenas v. Carolyn W. Colvin Doc. 24 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 EVA ARENAS, 13 Plaintiff, v. 14 15 16 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 17 ) No. CV 14-9117 AS ) ) MEMORANDUM OPINION AND ) ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY 20 ORDERED that this matter is remanded 21 for further administrative action consistent with this Opinion. 22 23 I. PROCEEDINGS 24 25 On August 10, 2011, Plaintiff Eva Arenas (“Plaintiff”) applied 26 for supplemental security income and disability insurance benefits 27 alleging a disabling condition beginning June 30, 2007. 28 On January 14, 2013, Administrative Law Judge (“ALJ”) Gail Reich (AR 184-93). 1 Dockets.Justia.com 1 examined 2 experts 3 (“V.E.”) June Hagen. 4 Plaintiff benefits in a written decision. 5 Council denied review of the ALJ’s decision. the records Thomas and Maxwell heard and testimony Glenn (AR 48-71). from Griffin, and Plaintiff, vocational medical expert On March 18, 2013, the ALJ denied (AR 17-33). The Appeals (AR 1-3). 6 7 On December 1, 2014, Plaintiff filed a Complaint pursuant to 8 42 U.S.C. §§ 405(g) and 1383(c)(3) alleging that the Social Security 9 Administration erred in denying benefits. (Docket Entry No. 3). On 10 April 14, 2015, Defendant filed an Answer to the Complaint, (Docket 11 Entry 12 (Docket Entry No. 13). 13 a United States Magistrate Judge. 14 November 25, 2015, the parties filed a Joint Stipulation (“Joint 15 Stip.”) setting 16 claims. (Docket Entry No. 23). No. 12), and the forth Certified Administrative Record (“AR”), The parties have consented to proceed before their (Docket Entry Nos. 9, 10). respective positions on On Plaintiff’s 17 II. SUMMARY OF ALJ’S DECISION 18 19 The ALJ applied the five-step process in evaluating Plaintiff’s 20 21 case. (AR 18-19). At step one, the ALJ determined that Plaintiff 22 had not engaged in substantial gainful activity after the alleged 23 onset date. 24 severe 25 lumbosacral 26 syndrome, panic disorder, and history of polysubstance abuse. 27 19). 28 shoulder pain and attention deficit hyperactivity disorder (“ADHD”) (AR 19). impairments spine, At step two, the ALJ found that Plaintiff’s included asthma, degenerative headaches, disc history disease of carpal of the tunnel (AR The ALJ determined, inter alia, that Plaintiff’s bilateral 2 1 were non-severe. 2 Plaintiff’s impairments did not meet or equal a listing found in 20 3 C.F.R. Part 404, Subpart P, Appendix 1. (AR 22-23). At step three, the ALJ found that (AR 23). 4 5 Before proceeding to step four, the ALJ found that Plaintiff had 6 the residual functional capacity (“RFC”) to perform at the “much 7 reduced level of sedentary work” except: she could lift 10 pounds 8 occasionally or frequently; she could sit for up to six hours and 9 stand or walk up to two hours in an eight-hour day; she was precluded 10 from working at heights or around hazards; she could push or pull 11 occasionally; 12 frequently; she was precluded from exposure to concentrated levels of 13 inhalants, including dust, pollen, and other particulates; and she 14 could sustain complex or detailed work frequently but not constantly. 15 (AR 25-26). she could sustain fine and gross hand manipulation 16 17 In making her RFC finding, the ALJ determined that Plaintiff’s 18 pain levels were not consistent with objective evidence and clinical 19 findings or with her self-reported daily activities. 20 ALJ 21 medical 22 evaluated 23 Plaintiff’s psychologist. 24 Party 25 assign it weight or otherwise analyze it. also summarized experts, and two Plaintiff’s Questionnaire assigned consulting physical weight examining and by the opinions physicians psychological (AR 28-30). completed to (AR 28). of The two who had symptoms, and The ALJ reviewed a Third Plaintiff’s brother but did not (AR 27). 26 27 At step four, the ALJ determined that Plaintiff could return to 28 her past relevant work as a telephone solicitor and receptionist. 3 1 (AR 30). 2 could seek work as a PC board touch-up screener, addresser, document 3 preparer 4 Accordingly, 5 within the meaning of the Social Security Act. The ALJ also determined, alternatively, that Plaintiff - microfilming, the ALJ or escort determined that vehicle driver. Plaintiff was (AR not 32). disabled (AR 32). 6 7 III. STANDARD OF REVIEW 8 9 This court reviews the Administration’s decision to determine if 10 the decision is free of legal error and supported by substantial 11 evidence. 12 1157, 1161 (9th Cir. 2012). 13 mere scintilla, but less than a preponderance. 14 759 F.3d 995, 1009 (9th Cir. 2014). 15 evidence supports a finding, “a court must consider the record as a 16 whole, 17 detracts 18 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation 19 omitted). 20 affirming 21 substitute [its] judgment for that of the ALJ.” 22 Admin., 466 F.3d 880, 882 (9th Cir. 2006). See Brewes v. Commissioner of Soc. Sec. Admin., 682 F.3d weighing from the As or both a “Substantial evidence” is more than a evidence To determine whether substantial that [Commissioner’s] result, reversing “[i]f the the ALJ’s Garrison v. Colvin, supports and conclusion.” evidence can conclusion, [a evidence that Aukland support court] v. either may not Robbins v. Soc. Sec. 23 24 IV. PLAINTIFF’S CONTENTIONS 25 26 Plaintiff contends that the ALJ failed to: (1) make a finding 27 regarding her credibility or provide specific, clear and convincing 28 reasons for finding her not credible; (2) analyze her brother’s Third 4 1 Party Questionnaire; (3) find that her ADHD and bilateral shoulder 2 pain were severe impairments; (4) make an RFC determination that 3 accounted for the combined effects of all of her impairments; and 4 (5) ask the V.E. about a hypothetical individual suffering from all 5 of her impairments. (Joint Stip. at 3, 29, 33, 42-43, 48-49). 6 7 V. DISCUSSION 8 After 9 consideration of the record, the Court finds that 10 Plaintiff’s third claim of error is without merit. 11 if 12 shoulder pain were “severe impairments” was harmless during step two 13 of the five-step process. 14 – the ALJ’s failure to provide specific and legitimate reasons for 15 rejecting the opinions of certain physicians, which likely affected 16 the formulation of Plaintiff’s RFC – warrants remand for further 17 consideration. 18 Plaintiff’s 19 Plaintiff’s remaining claims. any, in failing to find that Plaintiff’s The ALJ’s error, ADHD and bilateral However, Plaintiff’s fourth claim of error Since the Court is remanding the matter based on fourth claim of error, the Court will not address 20 21 A. The ALJ’s Error, If Any, In Failing To Find That Plaintiff’s 22 ADHD And Bilateral Shoulder Pain Were “Severe Impairments” Was 23 Harmless During Step Two Of The Five-Step Process 24 Plaintiff asserts that the ALJ erred at step two in failing to 25 26 find that 27 impairments. her ADHD and bilateral (Joint Stip. at 33, 36). 28 5 shoulder pain were severe 1 At step two, a claimant must make a threshold showing that her 2 medically determinable impairments significantly limit her ability to 3 perform basic work activities. 4 145 (1987); 20 C.F.R. §§ 404.1520(c), 416.920(c). 5 combination of impairments can be found ‘not severe’ only if the 6 evidence establishes a slight abnormality that has ‘no more than a 7 minimal effect on an individual’s ability to work.’” 8 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (quoting Social Security 9 Ruling (SSR) 85–28). device to See Bowen v. Yuckert, 482 U.S. 137, “[T]he 10 screening dispose 11 step of two inquiry groundless “An impairment or is claims.” a Smolen v. de minimis Id. (citing Bowen, 482 U.S. at 153–54). 12 The Ninth Circuit has ruled that, when the ALJ has resolved step 13 14 two in a claimant’s favor, any error in designating specific 15 impairments as severe does not prejudice a claimant at step two. 16 Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (even if ALJ 17 erroneously failed to find an impairment “severe,” this error “could 18 only have prejudiced [the claimant] in step three (listing impairment 19 determination) or step five (RFC) because the other steps, including 20 [step two], were resolved in her favor”). 21 Plaintiff had some severe impairments and resolved step two in her 22 favor. 23 alleged ADHD and bilateral shoulder pain were severe is harmless at 24 step two. See Here, the ALJ found that Therefore, any error in failing to find that Plaintiff’s 25 26 27 28 6 1 B. 2 The ALJ Failed To Make An RFC Determination That Accounted For The Combined Effects Of All of Plaintiff’s Impairments 3 4 Plaintiff contends that the ALJ erred in failing to consider the 5 effects of her ADHD and bilateral shoulder pain in determining her 6 RFC. 7 from the ALJ’s failure to deem her ADHD and shoulder pain “severe” 8 due to an erroneous evaluation of the available medical evidence and 9 opinions. (Joint Stip. at 42). Plaintiff claims that this failure stems (Joint Stip. at 33-36, 42-44). 10 An ALJ must consider the limiting effects of all of a claimant’s 11 12 impairments, even those deemed non-severe, in determining RFC. 20 13 C.F.R. § 416.945(e). 14 ADHD and bilateral shoulder pain were not severe did not necessarily 15 bar their consideration in formulating an RFC. Therefore, the ALJ’s finding that Plaintiff’s 16 An ALJ must take into account all medical opinions of record. 17 18 20 C.F.R. §§ 404.1527(b), 19 physician’s 20 physician’s, and an examining physician’s opinion carries more weight 21 than a reviewing physician’s.” 22 1202 (9th Cir. 2001); see also Lester v. Chater, 81 F.3d 821, 830 23 (9th Cir. 1995). 24 not contradicted by another physician, it may be rejected only for 25 “clear and convincing” reasons. 26 treating or examining physician’s opinion is contradicted by another 27 doctor, it may only be rejected if the ALJ provides “specific and 28 legitimate” reasons supported by substantial evidence in the record. opinion 416.927(b). carries more “Generally, weight than a an treating examining Holohan v. Massanari, 246 F.3d 1195, When a treating or examining physician’s opinion is Lester, 81 F.3d at 830. 7 When a 1 Id. at 830-31; see also Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 2 1198 (9th Cir. 2008). 3 4 1. ADHD 5 During an August 2011 doctor’s visit, Plaintiff stated that her 6 7 psychologist, Dr. Stephan Fleisher, had diagnosed her with ADHD. 8 456). 9 July (AR During doctor’s visits in September 2011, October 2011, and 2012, Dr. David McIntosh and other medical providers at 10 Northeast Valley Health Corporation noted that Plaintiff had ADHD. 11 (AR 453, 455, 517). 12 During 13 an October 2011 consultative psychiatric evaluation 14 before Dr. Sharmin Jahan, M.D., Dr. Jahan asked about Plaintiff’s 15 medical 16 speech, cognition, mood, affect, perception, thought processes and 17 content, 18 Plaintiff’s history was “unreliable” and she did not appear to have 19 “significant symptoms” of ADHD or any psychiatric limitations. 20 423). history, assessed insight, and her appearance, judgment, (AR behavior, 420-22), and cooperation, opined that (AR 21 In 22 a March 2012 Mental Disorder Questionnaire, Dr. Fleisher 23 stated Plaintiff was “a ninth grade drop out due to ADHD combined 24 type (314.01).” 25 had been tested for ADHD on May 17, 2011 and had “significant results 26 for 27 irritability, 28 Fleisher noted that Plaintiff had been prescribed Strattera but had (AR 489). inattention, and The Questionnaire stated that Plaintiff impulsivity, low lethargy, frustration tolerance.” 8 underachievement, (AR 490). Dr. 1 “a bad reaction including crying, fear, disorientation, and fear of 2 losing control.” (AR 490). 3 In 4 May 2012, Dr. Gary Posner saw Plaintiff for an ADHD 5 evaluation and renewed her Ritalin prescription, (AR 518), although 6 Dr. Posner’s treatment note does not discuss the evaluation. 7 summaries of subsequent visits in June and August 2012, Dr. Posner 8 noted that Plaintiff had ADHD, and he adjusted her Ritalin dosage 9 during that period. In (AR 511-12, 513-14, 516-17). 10 11 During the January 14, 2013 hearing, Dr. Griffin testified that 12 the record “indicate[d] or allege[d]” ADHD, but the information about 13 that 14 Plaintiff’s self-assessment. 15 that, even if Plaintiff had ADHD, it would likely have little effect 16 on her ability to work “given the effectiveness of the medications 17 for 18 Plaintiff had been prescribed Strattera and had stopped taking it 19 after one week because “it made her feel disconnected.” 20 Dr. 21 determinable. 22 panic 23 frequent complex and detailed work. condition this was “quite condition.” Griffin (AR concluded (AR 62). disorder would that limited” and was based largely on (AR 61-62, 68-69). Dr. Griffin stated 69). Dr. Griffin Plaintiff’s ADHD also was observed not that (AR 62). medically Dr. Griffin further testified that Plaintiff limit her ability to, inter alia, perform (AR 62-63). 24 2. Bilateral shoulder pain 27 In March 28 therapy 25 26 for 2009, right Dr. McIntosh shoulder pain, 9 referred Plaintiff to decreased range motion, of physical and 1 bilateral carpal tunnel syndrome. 2 Progress Note indicated that Plaintiff was experiencing pain in her 3 left upper trapezius and shoulder. 4 doctor’s visit, Plaintiff reported that physical therapy was helping 5 with her shoulder pain. 6 Visit Note indicated that Plaintiff was suffering from severe (“9- 7 10/10”) pain in her right shoulder. (AR 394-95). (AR 330). A May 2009 Therapy (AR 386). During a May 2011 Dr. McIntosh’s August 2011 Adult (AR 456). 8 In internal medicine 10 consultation before consultative examiner Dr. Seung Ha Lim. (AR 412- 11 15). 12 carpal tunnel syndrome, (AR 412), but did not mention Plaintiff’s 13 shoulder pain. 14 that 15 twenty-five pounds frequently and that her ability to push, pull, and 16 reach overhead was unlimited. 9 October 2011, Plaintiff underwent an Dr. Lim noted Plaintiff’s complaints of, inter alia, bilateral Plaintiff Following examination and testing, Dr. Lim opined was able to carry fifty pounds occasionally and (AR 415). 17 During 18 a November 2011 consultation with Dr. Insoo Kim, 19 Plaintiff complained of “painful limit of motion of both shoulders,” 20 which she claimed had begun in 1996 but had become worse during the 21 past three years and was worse with movement. 22 noted 23 tenderness, and Plaintiff’s impingement test was positive, although 24 her x-rays were unremarkable. 25 with shoulder impingement syndrome in both shoulders. that Plaintiff had mild local (AR 464). (AR 464). tenderness and Dr. Kim subacromial Dr. Kim diagnosed Plaintiff (AR 464). 26 27 During May, June, and August 2012 office visits, Dr. Posner 28 noted that Plaintiff suffered from chronic pain in joints “involving 10 1 [the] shoulder region.” 2 office visit, Dr. Ruth Landsberger similarly noted that Plaintiff had 3 chronic pain in joints “involving [the] shoulder region.” (AR 510, 513, 518). During a November 2012 (AR 507). 4 During the January 14, 2013 hearing, Dr. Maxwell testified that, 5 6 based on his review 7 impairments included degenerative disc disease of the lumbosacral 8 spine, asthma, chronic headaches, and a history of carpal tunnel 9 syndrome. (AR 58). of the medical records, Plaintiff’s medical Dr. Maxwell stated that Plaintiff could lift and 10 carry 10 pounds frequently and occasionally; was able to sit for six 11 hours and stand and walk for two; could not climb ladders, ropes or 12 scaffolds; should avoid unprotected heights and hazardous machinery; 13 was 14 avoid 15 frequent fine and gross manipulation with the upper extremities. 16 59). 17 any further greater limitations,” and Dr. Maxwell responded “no.” 18 (AR 59). limited to occasional concentrated dust, pushing fumes, with and lower odors; extremities; and was should limited to (AR The ALJ asked if there was “anything in the record to suggest 19 20 3. The ALJ’s Decision 21 22 23 In ruling that Plaintiff’s shoulder pain and ADHD were nonsevere at step two, the ALJ stated: 24 25 [Plaintiff] has complained of bilateral shoulder pain, with 26 limited range of motion, and worse pain with activity or 27 motion. 28 her x-rays were normal, she had a minimal limitation in her The records from the treating orthopedist indicate 11 1 range of motion, and there was mild tenderness on exam. 2 There 3 [Plaintiff’s] 4 allegations 5 extremities. 6 severe. [. . .] is insufficient own of pain This evidence, treating and sources limited alleged therefore, to support movement impairment from in her therefore is her upper non- 7 8 [A]s discussed 9 testified at [Plaintiff’s] January 14, 2013 hearing that alleged below, [ADHD] Dr. was Griffin, not a the Medical medically Expert, 10 her determinable 11 impairment. 12 limitation in [Plaintiff’s] ability to perform basic mental 13 work activities and is non-severe. It therefore does not cause more than minimal 14 15 In making this finding, the undersigned has considered the 16 four 17 regulations for evaluating mental disorders and in section 18 12.00C of the Listing of Impairments. 19 functional areas are known as the “paragraph B” criteria. broad functional areas set out in the disability These four broad 20 21 The first functional area is activities of daily living. 22 In this area, [Plaintiff] has no limitation. 23 limitations 24 complaints. in this domain stem from her Her alleged physical pain 25 26 The next functional area is social functioning. 27 area, [Plaintiff] has no limitation. 28 12 In this There has been an 1 insufficient offer of proof of limitations in this domain 2 due to the alleged ADHD. 3 4 The third functional area is concentration, persistence or 5 pace. 6 She is given the benefit of the doubt in this finding. In this area, [Plaintiff] has a mild limitation. 7 8 The fourth functional area is episodes of decompensation. 9 In this area, [Plaintiff] has experienced no episodes of 10 decompensation which have been of extended duration. There 11 has been no offer of proof of incidents which rise to the 12 level of an episode of decompensation. 13 14 Because [Plaintiff’s] 15 “mild” 16 areas and “no” episodes of decompensation which have been 17 of extended duration in the fourth area, it is non-severe. limitation in alleged any of ADHD the causes first no three more than functional 18 19 The limitations identified in the “paragraph B” criteria 20 are not a[n] [RFC] assessment but are used to rate the 21 severity of mental impairments at steps 2 and 3 of the 22 sequential evaluation process. 23 steps 24 assessment. . . . Therefore, the following [RFC] assessment 25 reflects the degree of limitation the undersigned has found 26 in the “paragraph B” mental function analysis. 4 and 5 . . . requires 27 28 The mental [RFC] used at (AR 22) (citations omitted). 13 a more detailed 1 In evaluating Plaintiff’s RFC, the ALJ reviewed the medical 2 evidence and assigned weight to five medical opinions. 3 ALJ summarized Dr. Lim’s evaluation and concluded that other opinions 4 should receive more weight because Dr. Lim’s evaluation was not based 5 on imaging reports. First, the (AR 29). 6 The ALJ gave “great weight” to the opinion of Dr. Maxwell, who 7 8 testified that 9 included only degenerative disc disease, asthma, headaches, and a 10 history of carpal tunnel syndrome, and that Plaintiff was limited to 11 “less than a full range of sedentary exertion.” 12 acknowledging that 13 source,” ALJ 14 “review 15 imaging reports,” and that Dr. Maxwell’s assessment seemed “generous” 16 given Plaintiff’s daily activities. the the Plaintiff’s medically Dr. Maxwell noted that complete exhibit was Dr. a determinable file, (AR 29-30). “non-treating, Maxwell impairments While non-examining had the opportunity including the MRI and to other (AR 30). 17 18 The ALJ also gave “great weight” to Dr. Jahan’s opinion, which 19 noted Plaintiff’s alleged “attention and focus” problems but found 20 that 21 symptoms” of ADHD. 22 to the opinion of Dr. Griffin, who had testified that Plaintiff’s 23 ADHD was not a medically determinable impairment, noting that, like 24 Dr. Maxwell’s assessment, Dr. Griffin’s assessment was based on “the 25 complete medical file, as well as [Plaintiff’s] hearing testimony.” 26 (AR 30). Plaintiff had no “psychiatric (AR 29, 423). 27 28 14 limitations” or “significant The ALJ gave even greater weight 1 The only other medical opinion evidence assigned weight by the 2 ALJ was the March 2012 mental health assessment by Dr. Fleisher, who 3 the ALJ noted had been identified as a treating source and a clinical 4 psychologist. 5 consideration,” finding 6 confirming treatment 7 Plaintiff and no “objective psychological testing” establishing ADHD. 8 (AR 30). 9 of major depression or recurrent daily panic attacks, and that “[t]he 10 report appear[ed] to be wholly based on self-reports by [Plaintiff].” 11 (AR 30). 12 part 13 Fleisher’s area of expertise. on the (AR 29). The that ALJ gave there the were relationship no between assessment “minimal clinical records Dr. Fleisher and The ALJ also stated that no evidence confirmed a diagnosis The ALJ also observed that the assessment was based in complaints of physical pain, which were outside Dr. (AR 30). 14 4. 15 Discussion 16 Plaintiff’s claims regarding her bilateral shoulder pain warrant 17 18 remand. During step 19 Plaintiff’s treating orthopedist, Dr. Kim, indicated normal x-rays, 20 minimal 21 tenderness” on exam. 22 “insufficient evidence . . . from [Plaintiff’s] own treating sources 23 to support her allegations of pain and limited movement in her upper 24 extremities,” and that her shoulder pain was non-severe. 25 The ALJ’s opinion did not explicitly analyze Plaintiff’s allegations 26 of shoulder pain at steps four and five, although ALJ mentioned the 27 presence of these allegations in summarizing medical records. 28 27). limitation in two, the ALJ Plaintiff’s (AR 22). stated range of that records motion, and from “mild The ALJ concluded that there was 15 (AR 22). (AR 1 Given the emphasis placed on the lack of medical evidence 2 substantiating a shoulder impairment, the ALJ’s step two finding may 3 have been intended as a finding that Plaintiff’s bilateral shoulder 4 pain was not a medically determinable impairment. 5 (1996) 6 “medical signs and laboratory findings” demonstrating the existence 7 of a medically determinable impairment). 8 discount 9 showing Plaintiff’s history of treatment for shoulder pain, including (a “symptom” without Kim’s cannot meaningful explanation there are However, this appears to numerous impingement medical shoulders following a physical examination. 12 Kohzad v. Astrue, 2009 WL 596609 at *8 (C.D. Cal. Mar. 3, 2009) (ALJ 13 improperly failed to discuss numerous medical records substantiating 14 claimant’s condition, but instead “isolated findings in the record in 15 order 16 Colvin, 2013 WL 3776331 at *3-*4 (C.D. Cal. July 16, 2013) (shoulder 17 impingement syndrome is a medically determinable impairment). nondisability syndrome records 11 her shoulder unless Dr. support of impairment 10 to diagnosis establish See SSR 96-4P in both (AR 21, 464); see also determination”); DeArmas v. 18 19 The ALJ may also have implicitly rejected contrary diagnoses or 20 opinions in giving “great weight” to Dr. Maxwell’s testimony that 21 there was “nothing in the medical records” to suggest impairments or 22 limitations 23 However, implicit rejection falls short of providing the “specific 24 and 25 treating physician, particularly in light of the record evidence of 26 Plaintiff’s diagnosis of shoulder impingement syndrome and treatment 27 for shoulder pain. 28 Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); see also Caballero beyond legitimate” those reasons that Dr. required Maxwell for assessed. rejecting the (AR opinion 30). of a Cf. Lester, 81 F.3d at 830-31 (9th Cir. 1995); 16 1 v. Colvin, 2015 WL 1097319 at *2 (C.D. Cal. Mar. 6, 2015) (“[T]he 2 ALJ's 3 supported 4 difficult to reconcile with the various diagnostic reports finding at 5 least some abnormalities in Plaintiff's knees and back.”). 6 even the ALJ’s reasons for assigning Dr. Maxwell’s opinion “great 7 weight” -- i.e., general statements that Dr. Maxwell, a non-treating, 8 non-examining physician, had an opportunity to review the “complete 9 exhibit conclusion by that the file” the limitations objective and and offered activities [Plaintiff’s] 11 conclusory 12 adequately daily . . evidence assessment explain living” the ALJ’s -- . of were record’ too is Indeed, “consistent are ‘not with Plaintiff’s shoulder impairments.1 to of clinical an 10 imposed apparent brief rejection and of 13 Plaintiff’s 14 The allegations 17 that Plaintiff’s ADHD was not a medically determinable impairment 18 that 19 [Plaintiff’s] ability to perform basic mental work activities and is 20 non-severe,” (AR 23); and (2) crediting Dr. Griffin’s opinion and more than this closer (1) observing during the step two analysis that Dr. Griffin testified cause rejected a 16 not clearly present question. does more ADHD 15 “therefore ALJ regarding minimal diagnosis limitation by in 21 22 23 24 25 26 27 28 1 It is also possible that the RFC’s limitations on lifting, pushing, and pulling, (AR 25-26), were intended to account for Plaintiff’s shoulder pain. However, the Court is unwilling to affirm on a basis not articulated by the ALJ, particularly given the importance of formulating an appropriate RFC and considering that Plaintiff’s degenerative disc disease of the lumbosacral spine and carpal tunnel syndrome might have been the reason for the limitations on lifting, pushing, and pulling. See Ceguerra v. Sec. Health and Human Servs., 933 F.2d 735, 738 (9th Cir. 1991); see also McCawley v. Astrue, 423 F. App’x 687, 689 (9th Cir. 2011) (RFC determination “may be the most critical finding contributing to the final . . . decision about disability”). 17 1 giving Dr. Fleisher’s opinion “minimal consideration,” in formulating 2 an 3 medical records and the diagnosis was based on Plaintiff’s self- 4 reports rather than objective testing. RFC, because the treatment relationship was not confirmed by (AR 30). 5 6 “If a treating provider's opinions are based ‘to a large extent’ 7 on an applicant’s self-reports and not on clinical evidence, and the 8 ALJ 9 treating provider’s opinion. finds the applicant based on a not credible, the ALJ may discount the However, when an opinion is not more 10 heavily 11 observations, 12 opinion.” 13 (letter and evaluations discussed various providers’ observations, 14 diagnoses, and prescriptions, in addition to claimant’s self-reports, 15 and ALJ “offered no basis for his conclusion that these opinions were 16 based 17 evidence [did] not support such a conclusion.”). there patient’s is no self-reports evidentiary basis than for on clinical rejecting the Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) more heavily on [claimant’s] self-reports, and substantial 18 Dr. Fleisher’s assessment mentioned that Plaintiff was tested 19 20 for ADHD on May 21 dimensions, 22 Plaintiff’s ADHD and prescribed treatment for it, generally with no 23 indication 24 (AR 17, 2011, with 490), and several the diagnosis other medical assessed (See AR 453, 455, 456-57, 511, 514, 516-17, 518). The 25 Court these 26 apparent finding that Plaintiff’s ADHD was not medically determinable 27 or that the finding of ADHD was based on Plaintiff’s self reports. 28 See Ghanim, 763 F.3d at 1162. to on records several statements. difficult based on own reports was results” Plaintiff’s finds that “significant reconcile with the ALJ’s The medical records also reference a 18 1 treatment relationship between Plaintiff and Dr. Fleisher, (see AR 2 456), and, if additional records were necessary to substantiate Dr. 3 Fleisher’s test or the treatment relationship between Dr. Fleisher 4 and Plaintiff, or to substantiate testing or evaluations performed by 5 other physicians, the ALJ could have requested additional testimony 6 or evidence. 7 to 8 represented 9 physician’s opinions to evaluate them, he “had a duty to conduct an 10 appropriate inquiry, for example, by subpoenaing the physicians or 11 submitting further questions to them”).2 12 warranted with respect to Plaintiff’s allegations of ADHD. fully See Smolen, 80 F.3d at 1288 (ALJ has a “special duty” and by fairly develop counsel; if the ALJ record, needed to even where know Remand is the claimant basis therefore for is a also 13 14 \\ 15 \\ 16 2 17 18 19 20 21 22 23 24 25 26 27 28 After discussing Dr. Griffin’s assessment during step two, the ALJ briefly analyzed the four functional areas for evaluating mental disorders and found that Plaintiff suffered from no more than mild limitations in any of the first three areas and no extended episodes of decompensation. (AR 23). Additionally, the ALJ limited Plaintiff to frequent, but not constant, complex or detailed work, (AR 26); this limitation may have been designed to fully account for Plaintiff’s psychological impairments. (AR 30; but see AR 62-63 (Dr. Griffin recommending such limitations to account for Plaintiff’s panic disorder)). Therefore, the ALJ’s failure to properly evaluate the medical evidence tending to support Plaintiff’s ADHD may have been harmless. However, the extent to which the ALJ’s opinion was affected by an deficient evaluation of the medical evidence is unclear. Moreover, as noted supra, the Court is unwilling to affirm on a basis not expressly articulated by the ALJ, see Ceguerra, 933 F.2d at 738, especially given the importance of the RFC determination in determining disability, see McCawley, 423 F. App’x at 689. In any event, remand is warranted for other reasons; on remand, the ALJ may re-evaluate whether the RFC needs to be adjusted to account for Plaintiff’s ADHD after the medical evidence is evaluated appropriately. 19 1 C. Remand Is Warranted 2 3 The decision whether to remand for further proceedings or order 4 an immediate award of benefits is within the district court’s 5 discretion. 6 Where no useful purpose would be served by further administrative 7 proceedings, or where the record has been fully developed, it is 8 appropriate to exercise this discretion to direct an immediate award 9 of benefits. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Id. at 1179 (“[T]he decision of whether to remand for 10 further proceedings turns upon the likely utility of such 11 proceedings.”). 12 that further administrative review could remedy the Commissioner’s 13 errors, remand is appropriate. 14 (9th Cir. 2011); Harman, 211 F.3d at 1179-81. However, where the circumstances of the case suggest McLeod v. Astrue, 640 F.3d 881, 888 15 16 Here, the Court remands because the ALJ did not properly 17 consider the 18 shoulder pain 19 record does not establish that the ALJ would necessarily be required 20 to 21 remand is appropriate. find limiting in Plaintiff effects determining disabled of Plaintiff’s ADHD the Plaintiff’s RFC.. if these deficiencies and bilateral Because were the remedied, 22 23 The Court has not reached issues not discussed supra except to 24 determine that reversal with a directive for the immediate payment of 25 benefits would be inappropriate at this time. 26 issues addressed in this order, the ALJ should consider on remand any 27 other issues raised by Plaintiff, if necessary. 28 20 In addition to the 1 VI. CONCLUSION 2 3 For the foregoing reasons, the decision of the Administrative 4 Law Judge is VACATED, and the matter is REMANDED, without benefits, 5 for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 10 11 Dated: July 28, 2016 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21
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