Noemi Tapia Reyes v. Carolyn W. Colvin, No. 2:2015cv09406 - Document 26 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen L. Stevenson IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order. (sbu)
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Noemi Tapia Reyes v. Carolyn W. Colvin Doc. 26 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ) NO. CV 15-9406-KS ) ) ) MEMORANDUM OPINION AND ORDER ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) Defendant. ) _________________________________ ) NOEMI TAPIA REYES Plaintiff, v. 17 18 INTRODUCTION 19 20 Noemi Tapia Reyes (“Plaintiff”) filed a Complaint on December 4, 2015, seeking 21 review of the denial of her application for a period of disability, disability insurance (“DI”), 22 and supplemental security income (“SSI”). On January 12, 2016, the parties consented, 23 pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate 24 Judge. (Dkt. Nos. 13-15.) On September 19, 2016, the parties filed a Joint Stipulation 25 (“Joint Stip.”). (Dkt. No 25.) Plaintiff seeks an order reversing the Commissioner’s decision 26 and ordering the payment of benefits or, in the alternative, remanding for further 27 proceedings. (Joint Stip. at 34-35.) The Commissioner requests that the ALJ’s decision be 28 1 Dockets.Justia.com 1 affirmed or, in the alternative, remanded for further proceedings. (See id. at 35-37.) The 2 Court has taken the matter under submission without oral argument. 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 6 On February 14 and 16, 2012, Plaintiff, who was born on May 14, 1961, protectively 7 filed applications for a period of disability, DIB, and SSI.1 (See Administrative Record 8 (“AR”) 212, 214.) Plaintiff alleged disability commencing March 23, 2010 due to a neck 9 injury, lower back pain, hand pain, shoulder pain, and pain when sitting. (Id. 212, 214, 235.) 10 Plaintiff previously worked as a companion (DOT 309.677-010) and a sorter in a fruit 11 conveyor line (DOT 529.687-186). (Id. 64; see also id. 236.) After the Commissioner 12 denied Plaintiff’s applications initially (AR 137-40) and on reconsideration (id. 144-48), 13 Plaintiff requested a hearing (see id. 149-50). Administrative Law Judge Mark B. Greenberg 14 (“ALJ”) held a hearing on February 10, 2014 (id. 49-68). Plaintiff, who was represented by 15 counsel, testified before the ALJ as did vocational expert (“VE”) Susan Allison. (See AR 16 52-68.) An interpreter was also present. (Id. 51.) On February 21, 2014, the ALJ issued an 17 unfavorable decision, denying Plaintiff’s applications for DIB and SSI. (Id. 27-44.) On 18 October 5, 2015, the Appeals Council denied Plaintiff’s request for review. (Id. 1-9.) 19 20 SUMMARY OF ADMINISTRATIVE DECISION 21 22 The ALJ found that Plaintiff had not engaged in substantial gainful activity since her 23 March 23, 2010 alleged onset date. (AR 32.) The ALJ further found that Plaintiff had the 24 following severe impairments: degenerative disc disease; degenerative joint disease; 25 depression; somatoform disorder; and plantar fasciitis. 26 plaintiff did not have an impairment or combination of impairments that met or medically (Id.) The ALJ concluded that 27 1 28 Plaintiff was 50 years old on the application date and thus met the agency’s definition of a person closely approaching advanced age. See 20 C.F.R. §§ 404.1563(d), 416.963(d). 2 1 equaled the severity of any impairments listed in 20 C.F.R. part 404, subpart P, appendix 1 2 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926), and he 3 explained his rationale for finding that Plaintiff’s impairments did not meet or equal Listings 4 12.04 and 12.07. (Id. 32-33.) The ALJ determined that Plaintiff had the residual functional 5 capacity (“RFC”) to perform light work except she is limited to: “[only] occasional postural 6 activities; no ladders, ropes, or scaffolds; occasional reaching at or above the shoulder on the 7 right; no kneeling or squatting; and limited to unskilled work in a nonpublic habituated 8 setting involving simple repetitive tasks.” (Id. 34.) The ALJ found that Plaintiff was able to 9 perform her past relevant work as a sorter, fruit conveyor line (DOT 529.687-186). (Id. 43.) 10 Accordingly, the ALJ determined that Plaintiff had not been under a disability, as defined in 11 the Social Security Act, from the alleged onset date through the date of the ALJ’s 12 decision. (Id.) 13 14 STANDARD OF REVIEW 15 16 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 17 determine whether it is free from legal error and supported by substantial evidence in the 18 record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence 19 is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 20 reasonable mind might accept as adequate to support a conclusion.’” Gutierrez v. Comm’r of 21 Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). “Even when the 22 evidence is susceptible to more than one rational interpretation, we must uphold the ALJ’s 23 findings if they are supported by inferences reasonably drawn from the record.” Molina v. 24 Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). 25 26 Although this Court cannot substitute its discretion for the Commissioner’s, the Court 27 nonetheless must review the record as a whole, “weighing both the evidence that supports 28 and the evidence that detracts from the [Commissioner’s] conclusion.” Lingenfelter v. 3 1 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted); 2 Desrosiers v. Sec’y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ 3 is responsible for determining credibility, resolving conflicts in medical testimony, and for 4 resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 5 6 The Court will uphold the Commissioner’s decision when the evidence is susceptible 7 to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 8 2005). However, the Court may review only the reasons stated by the ALJ in his decision 9 “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 10 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court will not 11 reverse the Commissioner’s decision if it is based on harmless error, which exists if the error 12 is “‘inconsequential to the ultimate nondisability determination,’ or if despite the legal error, 13 ‘the agency’s path may reasonably be discerned.’” Brown-Hunter v. Colvin, 806 F.3d 487, 14 492 (9th Cir. 2015) (internal citations omitted). 15 DISCUSSION 16 17 18 Plaintiff alleges that the ALJ failed to properly evaluate and incorporate the opinions 19 of two treating physicians: Thomas Curtis, M.D., board certified psychiatrist; and Richard 20 Scheinberg, M.D., orthopedic surgeon. (Joint Stip. at 4.) 21 22 I. Applicable Law 23 24 “The ALJ is responsible for translating and incorporating clinical findings into a 25 succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). In 26 doing so, the ALJ must articulate a “substantive basis” for rejecting a medical opinion or 27 crediting one medical opinion over another. Garrison v. Colvin, 759 F.3d 995, 1012 (9th 28 Cir. 2014); see also Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) (“an ALJ 4 1 cannot in its decision totally ignore a treating doctor and his or her notes, without even 2 mentioning them”). An ALJ errs when he discounts a treating or examining physician’s 3 medical opinion, or a portion thereof, “while doing nothing more than ignoring it, asserting 4 without explanation that another medical opinion is more persuasive, or criticizing it with 5 boilerplate language that fails to offer a substantive basis for his conclusion.” See Garrison, 6 759 F.3d at 1012-13 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)). 7 8 The opinion of a treating source is generally entitled to greater weight than the 9 opinion of doctors who do not treat the claimant because treating sources are “most able to 10 provide a detailed, longitudinal picture” of a claimant’s medical impairments and bring a 11 perspective to the medical evidence that cannot be obtained from objective medical findings 12 alone. See Garrison, 759 F.3d at 1012; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). 13 Thus, if a treating physician’s opinion is well-supported by medically acceptable clinical and 14 laboratory diagnostic techniques and is not inconsistent with the other substantial evidence 15 in the record, it is entitled to controlling weight. Ghanim v. Colvin, 763 F.3d 1154, 1160 16 (9th Cir. 2014). 17 physician’s opinion does not meet this test for controlling weight, the treating physician’s 18 opinion is still entitled to deference and may be rejected only if the ALJ articulates “clear 19 and convincing” reasons supported by substantial evidence for doing so. Id. at 1160-61; 20 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If, on the other hand, the Commissioner determines that a treating 21 22 Nevertheless, an ALJ does not commit legal error per se by according greater weight 23 to the opinion of a nonexamining State agency physician than to the contradictory opinion of 24 a treating physician. See, e.g., Morgan v. Comm’r of. Soc. Sec. Admin., 169 F.3d 595, 600- 25 03 (9th Cir. 1999). Instead, an ALJ may reject the contradicted opinion of a treating 26 physician if the ALJ articulates “specific and legitimate” reasons for doing so and those 27 reasons are supported by substantial evidence in the record. Garrison, 759 F.3d at 1012; 28 Hill v. Astrue, 698 F.3d 1153, 1159-60 (9th Cir. 2012). 5 1 II. ALJ Properly Evaluated And Incorporated The Opinion Of Dr. Curtis. 2 3 A. Findings And Opinions Of Dr. Curtis 4 5 In connection with her workers’ compensation claim, Plaintiff was evaluated by Dr. 6 Curtis, a board certified psychiatrist, on May 5, 2010, approximately two months after her 7 alleged onset date. (AR 432.) Dr. Curtis and his staff spent the next two and a half years 8 treating Plaintiff for depression. In addition to two and a half years of treatment notes (AR 9 383-431), the record contains the results of Dr. Curtis’ initial evaluation in May 2010, his 10 subsequent findings in October 2010 when he wrote a permanent and stationary report, and 11 his findings and opinion in 2013 when the State Insurance Compensation Fund declined to 12 certify Plaintiff’s continued receipt of cognitive behavioral therapy. 13 14 1. May 5, 2010 Evaluation 15 16 In his initial May 5, 2010 evaluation, Dr. Curtis observed that Plaintiff presented as 17 “initially guarded due to her depression, anxiety, fatigue, and irritability caused by pain and 18 physical disability.” (AR 436.) Dr. Curtis reported that Plaintiff demonstrated “diminished 19 cognitive functioning in the clinical interview situation” and was “defective in concentration, 20 attention, and memory.” (AR 437.) Dr. Curtis believed that, “most likely,” Plaintiff’s 21 cognitive deficits were the result of “overwhelmed psychological coping mechanisms.” (AR 22 437.) Dr. Curtis described Plaintiff’s psychological test results as “extremely abnormal” 23 because they revealed “abnormality in all of the tests measuring emotional functioning.” 24 (AR 437.) She placed in the “severe” range of subjective depression (AR 437) and the 25 “moderate” range of anxiety (AR 438). Dr. Curtis diagnosed Plaintiff with Depressive 26 Disorder NOS with anxiety. (AR 440.) Dr. Curtis opined that “if [Plaintiff] were to attempt 27 to return to work [as a companion] now, her emotional condition would probably soon 28 deteriorate into worsened emotional dysfunction.” 6 (AR 441.) Dr. Curtis prescribed: 1 Wellbutrin, an antidepressant, for depression; Risperdal, an antipsychotic, for emotional 2 control; and ProSom, a sedative, for nighttime sleep. (AR 443.) 3 2. October 21, 2010 Permanent And Stationary Report 4 5 6 On October 21, 2010, Dr. Curtis wrote a permanent and stationary report (“Permanent 7 and Stationary Report”) and requested additional psychiatric treatment for Plaintiff. (AR 8 645.) In that report, Dr. Curtis stated that Plaintiff reported experiencing relief of her 9 symptoms from the psychotropic medications (AR 648) but he described Plaintiff as 10 “remain[ing] symptomatic” (AR 649). Dr. Curtis maintained his diagnosis of Depressive 11 Disorder NOS with anxiety and assessed a GAF score of 52.2 He described the degree of 12 Plaintiff’s permanent emotional impairment as moderate, the degree of her permanent 13 mental and behavioral impairment as “compatible with some but not all useful functioning,” 14 and the degree of her overall impairment as “moderate almost marked.” (AR 662, 665.) In a 15 separate chart, Dr. Curtis indicated that Plaintiff suffered a moderate impairment in her 16 activities of daily living, social functioning, concentration, persistence, and pace, and 17 adaptation. (AR 663.) 18 19 Despite the foregoing, Dr. Curtis “anticipated that [Plaintiff] would be able to tolerate 20 the stresses common to the work environment including maintaining attendance, making 21 decisions, doing scheduling, completing tasks and interacting appropriately with supervisors 22 and peers.” (AR 664.) He also opined, however, that “[i]f [Plaintiff] were to attempt to 23 return to [her] normal and regular work situation [i.e., as a companion], her condition would 24 be expected to worsen such that there would be an increase in her level of symptoms that 25 2 26 27 28 A GAF score of 51 to 60 indicates moderate symptoms or difficulty in social, occupational, or school functioning. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (“DSM-IV”) 34 (revised 4th ed. 2000). The Commissioner has stated that the GAF scale “does not have a direct correlation to the severity requirements in [the] mental disorders listings,” 65 Fed. Reg. 50764, 50764-65 (Aug. 21, 2000), and the most recent edition of the DSM “dropped” the GAF scale. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 16 (5th ed. 2012). 7 1 would correlate with a higher level of observed emotional impairment.” (AR 664.) Dr. 2 Curtis added that he believed “no amount of emotional treatment could reasonably be 3 expected to completely erase the adverse impact and complications of [Plaintiff’s] work 4 injuries,” (AR 649), but surgery that reduced Plaintiff’s physical pain and disability could 5 result in a corresponding improvement in Plaintiff’s mental and emotional health (AR 671). 6 3. October 28, 2013 Follow Up Report On The Reinstitution Of Treatment 7 8 9 In April 2013, the State Compensation Insurance Fund discontinued authorization for 10 Plaintiff’s mental health treatment with Dr. Curtis, and it subsequently denied Dr. Curtis’ 11 requests for authorization to resume cognitive behavioral therapy. (See AR 575; see also 12 e.g., id. 586, id. 592-97, id. 598.) On October 28, 2013, Dr. Curtis and a psychologist in his 13 office, William Kaiser, Ph.D., prepared a “Follow Up Report on the Reinstitution of 14 Treatment,” which stated: 15 16 [F]ollowing the discontinuation of treatment in 4/13, [Plaintiff’s] emotional 17 condition declined to the point of further request for treatment. . . . [W]ith the 18 discontinuance of treatment, [Plaintiff] reported an increase in depressive 19 symptoms including pessimism and emptiness. She is less motivated to do the 20 things she used to do. 21 functioning in that she became more emotionally withdrawn and insecure. . . . 22 With the discontinuation of treatment, [Plaintiff] experienced an increase in her 23 symptoms of anxiety – in her fear, uneasiness, and twitching. 24 becomes frustrate[ed] and nervous, she feels tense with shaking.” There were also reductions in [Plaintiff’s] social 25 26 (AR 575.) 27 28 8 When she 1 In connection with that October 28, 2013 report, Dr. Curtis and Dr. Kaiser assessed 2 Plaintiff’s performance on psychological tests. (AR 576.) Plaintiff again scored in the 3 “severe” range for both subjective depression and anxiety. (AR 576.) Dr. Curtis requested 4 authorization to resume treating Plaintiff with psychotropic medication, cognitive behavioral 5 therapy, and biofeedback visits. (AR 577, 578.) 6 7 B. ALJ’s Opinion 8 9 The ALJ neither expressly adopted nor rejected Dr. Curtis’ findings and opinions but 10 determined that Plaintiff was limited to “unskilled work in a non-public habituated setting 11 involving simple repetitive tasks.” (See generally AR 34, 42.) With respect to Dr. Curtis’ 12 assessments, the ALJ stated the following: 13 14 In a Comprehensive Report dated October 21, 2010, [Plaintiff] was found 15 to be permanent and stationary with a [GAF] score of 52, indicating her 16 symptoms caused moderate difficulty in social and occupational functioning . . . 17 Mental status examinations consistently showed that [Plaintiff] was depressed 18 with anxiety due to her physical complaints. The progress notes indicated no 19 side effects or complaints with medications. [Plaintiff’s] improvement was 20 documented on October 25, 2013, indicating she has reported a reduction in 21 depressive symptoms, she had learned to think positively, she has experienced a 22 reduction in her symptoms of anxiety, there has been improvement in her 23 symptoms of panic, her sleep disturbance has improved, she has fewer 24 nightmares, she has felt less tired, and her physical complaints have been 25 reduced. [Plaintiff] reported that the medications have helped in reducing her 26 emotional symptoms. . . . [T]hese findings are consistent with the residual 27 functional capacity assessed herein. There is no longitudinal evidence of 28 9 1 reported symptoms, limitations, or pathology to require any workplace 2 limitations related to “stress,” however defined to quantified. 3 4 (AR 42.) 5 6 However, the ALJ assigned “great weight” to the opinion of the State agency mental 7 medical consultant on reconsideration: B. Smith, M.D., whose medical specialty was not 8 identified. (AR 42; see also 112-14.) Dr. Smith opined on February 21, 2013, more than 9 two years after Dr. Curtis’ Permanent and Stationary Report, that Plaintiff was moderately 10 limited in her ability to do the following: understand, remember, and carry out detailed 11 instructions; maintain attention and concentration for extended periods; complete a normal 12 workday and workweek without interruptions from psychologically based symptoms; 13 perform at a consistent pace without an unreasonable number and length of rest periods; 14 interact appropriately with the general public; and respond appropriately to changes in the 15 work setting. (AR 112-13.) Dr. Smith clarified that Plaintiff was able to maintain regular 16 attendance and, inter alia, adapt to routine changes in a simple work setting that is within her 17 physical abilities. (AR 114.) 18 19 C. Analysis 20 21 Plaintiff contends that the ALJ rejected, without explanation, Dr. Curtis’ assessment 22 that Plaintiff is moderately limited in her activities of daily living, social functioning, 23 concentration, persistence, pace, and adaptation. (Joint Stip. at 9.) The Commissioner 24 contends that the ALJ’s assessment that Plaintiff can perform “unskilled work in a non- 25 public habituated setting involving simple repetitive tasks” was consistent with Dr. Curtis’ 26 opinions regarding Plaintiff’s moderate mental limitations. (Id. at 19.) The Commissioner 27 notes that Dr. Curtis opined in his October 21, 2010 Permanent and Stationary Report on 28 October 21, 2010 that he “anticipated that [Plaintiff] would be able to tolerate the stresses 10 1 common to the work environment including maintaining attendance, making decisions, 2 doing scheduling, completing tasks and interacting appropriately with supervisors and 3 peers.” (Id.) (quoting AR 664). At the bottom of that same paragraph, Dr. Curtis wrote “if 4 [Plaintiff] attempt[ed] to return to a normal and a regular work situation [i.e., as a 5 companion], her condition would be expected to worsen such that there would be an increase 6 in her level of symptoms that would correlate with a higher level of observed emotional 7 impairment.” (AR 664.) 8 9 The Commissioner further argues that Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th 10 Cir. 2008) is controlling because Dr. Curtis and Dr. Smith agreed that Plaintiff is moderately 11 limited in social functioning, concentration, persistence, pace, and adaptation but only Dr. 12 Smith assessed whether those moderate limitations precluded Plaintiff from performing 13 unskilled work on a sustained basis. (See Joint Stip. at 22-23.) In Stubbs-Danielson, the 14 Ninth Circuit found that the ALJ did not err when he seemingly ignored a treating 15 physician’s opinion that the plaintiff was “moderately limited in her ability to perform at a 16 consistent pace” because the ALJ credited the opinion of a reviewing physician who had 17 assessed the same limitation but who, unlike the treating physician, had considered whether 18 the plaintiff could carry out simple tasks despite this deficit – and concluded that she could. 19 See Stubbs-Danielson, 539 F.3d at 1171-1175. The Ninth Circuit explained: “[The treating 20 physician] did not assess whether [the plaintiff] could perform unskilled work on a sustained 21 basis. [The reviewing physician’s] report did. [The reviewing physician’s] report, which 22 also identified ‘a slow pace, both in thinking & actions’ and several moderate limitations in 23 other mental areas, ultimately concluded [the plaintiff] retained the ability to ‘carry out 24 simple tasks.’” Stubbs-Danielson, 539 F.3d at 1173. Thus, the Ninth Circuit held that the 25 ALJ’s exclusion of the treating physician’s opinion from the RFC assessment did not 26 “constitute a rejection of [the treating physician’s] opinion” because the two opinions were 27 consistent with each other and the ALJ “explain[ed] the omission of [the treating physician’s 28 opinion] . . . by reference to [the reviewing physician’s] assessment. Id at 1174, 1175. 11 1 The Court agrees that Stubbs-Danielson is controlling. Although Dr. Curtis opined 2 that Plaintiff’s moderate emotional impairments would worsen if she returned to a “normal 3 and a regular work situation,” he was contemplating her return to her previous occupation as 4 a companion, which the VE classified as “light exertional” and “semi-skilled” work. (See 5 AR 64) (emphasis added). Dr. Curtis expressed no opinion regarding Plaintiff’s ability to 6 perform less physically and mentally rigorous work on a sustained basis. Dr. Smith, on the 7 other hand, did. Accordingly, Dr. Curtis and Dr. Smith’s opinions are not in conflict – Dr. 8 Smith’s opinion is simply more specific – and the ALJ did not err by treating the two 9 opinions as such. See Stubbs-Danielson, 539 F.3d at 1171-1175. 10 11 Additionally, Dr. Curtis’ records indicate that Plaintiff’s mental impairments are the 12 result of her physical limitations and accompanying loss of employment as a companion and 13 would improve if she obtained employment that she was physically able to perform. (See, 14 e.g., AR 666 (suggesting Plaintiff would not have sustained any emotional impairment 15 absent her work injury and its aftermath), AR 666 (expressing a positive prognosis that 16 Plaintiff would be restored to the labor market but also expressing concern that if she was 17 not able to attain any work, then her emotional impairment could worsen), AR 671 (if 18 Plaintiff’s physical pain and disability were reduced, Plaintiff could experience a 19 corresponding improvement in her mental and emotional health).) For all of the foregoing 20 reasons, the Court finds no error with the ALJ’s assessment of Dr. Curtis’ findings and 21 opinions. 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 12 1 2 III. ALJ Failed To Properly Evaluate And Incorporate The Opinion Of Dr. Scheinberg. 3 4 A. Findings And Opinions Of Dr. Scheinberg 5 6 On March 23, 2010, in connection with her workers’ compensation claim, Plaintiff 7 was evaluated by Dr. Scheinberg, an orthopedic surgeon. (AR 538-41.) The record shows 8 that she received routine treatment from Dr. Scheinberg, including a February 11, 2011 right 9 lumbar decompression surgery and hemilaminotemy at L5-S1 (AR 507-08), for more than 10 three years after that initial evaluation date (see generally AR 450-541, 605-634 (treatment 11 notes for the period between 3/23/10 and 1/8/14)). 12 13 On May 7, 2013, after three years of regular treatment, Dr. Scheinberg wrote a 14 permanent and stationary report (“Permanent and Stationary Report”), in which he opined 15 that Plaintiff continues to have “significant symptoms of severe low back pain with radicular 16 pain” resulting from three posterior disc protrusions, an annular tear related to the posterior 17 aspect of the disc protrusion at L5-S1, encroachment on the foraminal exiting nerve roots 18 bilaterally, and arthritic changes in the facet joints bilaterally. (AR 623.) He reported that 19 Plaintiff also experiences neck pain, bilateral hand pain, and right shoulder pain resulting 20 from minimal osteoarthritic changes. (AR 623.) Dr. Scheinberg opined that Plaintiff had 21 reached her maximum medical improvement and assessed a series of functional restrictions 22 (AR 625), which he updated with a June 3, 2013 Supplemental Report (AR 553-54). 23 According to those reports, Dr. Scheinberg opined that Plaintiff should avoid the following 24 activities: lifting in excess of 20 pounds; lifting 20 pounds more than 2 to 3 times per day; 25 lifting 10 pounds more frequently than one time per hour; repetitive bending; repetitive 26 stooping; repetitive at or above shoulder level activities with her right upper extremity; 27 squatting; and kneeling. (AR 553, 625.) Dr. Scheinberg also adopted Plaintiff’s report to 28 her lawyer that she can: look down for only 10 minutes at a time; sit for no more than 10 13 1 minutes at a time; stand for no more than 20 minutes at a time; and walk for no more than 20 2 minutes at a time. (AR 553.) 3 4 B. ALJ’s Opinion 5 6 The ALJ adopted portions of Dr. Scheinberg’s 2013 opinions while rejecting others. 7 Specifically, the ALJ found that Plaintiff could perform light work – that is, lift 20 pounds at 8 a time “with frequent lifting or carrying of objects weighing up to 10 pounds” and perform 9 “a good deal of walking or standing, or . . . sitting most of the time with some pushing and 10 pulling of arm or leg controls” – but could only occasionally reach at or above the shoulder 11 with her right arm and could not kneel or squat. (AR 34); see also S.S.R. 83-10 (defining 12 “light work”). 13 Plaintiff’s functional limitations “some weight,” adopting the functional restrictions that 14 were “best supported by the objective evidence and the record as a whole” while giving “no 15 weight” to the functional restrictions that Dr. Scheinberg based “quite heavily on the 16 subjective report of symptoms and limitations provided by [Plaintiff], without objective 17 support.” (AR 41.) The ALJ explained that he assigned Dr. Scheinberg’s assessment of 18 19 The ALJ cited the following reasons for rejecting a portion of Dr. Scheinberg’s 2013 20 opinions: (1) Plaintiff reported throughout the record that her medications help and denied 21 side effects; (2) Plaintiff reported that her medications allow her to adequately perform her 22 activities of daily living; (3) portions of Dr. Scheinberg’s opinion are not supported by 23 sustained reports of symptoms or objective pathology of record; (4) in December 2013, Dr. 24 Scheinberg recommended that Plaintiff obtain a gym membership and “6 sessions with a 25 certified trainer” (see also AR 610); and (5) in January 2014, Plaintiff reported that her 26 medication “facilitates maintenance of ADLs including very light household duties, 27 shopping for groceries, preparing food, bathing, grooming” and that Plaintiff “indicates 28 14 1 ability to exercise and entertain healthy activity level with current medication on board” (see 2 AR 605). (AR 41.) 3 4 Instead of giving Dr. Scheinberg’s opinion controlling weight, the ALJ gave “great 5 weight” to the opinion of the reviewing state agency physician, Dr. G. Bugg. (AR 42.) On 6 February 19, 2013, three months before Dr. Scheinberg wrote his Permanent and Stationary 7 Report, Dr. Bugg opined that Plaintiff could: occasionally lift 20 pounds; frequently carry 8 10 pounds; stand and/or walk about 6 hours in an 8 hour workday; engage in unlimited 9 pushing and/or pulling; and frequently kneel, stoop (bend at the waist), crouch (bend at the 10 knees), and crawl. (AR 112.) 11 12 C. Analysis 13 14 The Commissioner contends that the ALJ did not err in assigning greater weight to the 15 opinion of the reviewing state agency physician, Dr. Bugg, than to Plaintiff’s treating 16 physician of over three years, Dr. Scheinberg, because “the only portion of [Dr. 17 Scheinberg’s] opinion that the ALJ rejected was a two paragraph supplemental report that, 18 essentially, endorsed a list of Plaintiff’s subjective complaints.” (Joint Stip. at 24.) The 19 Court disagrees with the Commissioner’s characterization of the portion of Dr. Scheinberg’s 20 opinion that the ALJ rejected. 21 22 Admittedly, the first paragraph of Dr. Scheinberg’s June 3, 2013 Supplemental Report 23 assessed functional limitations that were based primarily, if not entirely, on Plaintiff’s 24 subjective complaints to her lawyer, complaints that the ALJ subsequently found were not 25 credible. (See AR 553.) However, in the second paragraph of that report, Dr. Scheinberg 26 clarified, without reference to Plaintiff’s subjective complaints, what he meant when he 27 opined in his May 7, 2013 Permanent and Stationary Report that Plaintiff could lift no more 28 than 20 pounds. (See id.) Dr. Scheinberg explained that while Plaintiff is able to lift 20 15 1 pounds, she can do so no more than three times per day, and that while Plaintiff is able to lift 2 10 pounds, she can do so no more than one time per hour. (Id.) The ALJ failed to 3 adequately address this portion of Dr. Scheinberg’s 2013 opinions. 4 5 In determining that Plaintiff retained the residual functional capacity to perform light 6 work, the ALJ determined that Plaintiff could “frequently” lift or carry objects weighing up 7 to 10 pounds. 8 Commissioner defines “frequent” as “occurring from one-third to two-thirds of the time.” 9 S.S.R. 83-10. Accordingly, contrary to Dr. Scheinberg’s opinion that Plaintiff could lift 10 10 pound objects “no more than one time per hour,” the ALJ determined that Plaintiff could 11 spend up to two-thirds of her workday engaged in lifting 10 pound objects. The ALJ’s 12 determination cannot be reconciled with Dr. Scheinberg’s opinion. Cf. Nguyen v. Colvin, 13 No. SA CV 12-1837-PJW, 2013 WL 6536732, at *1 (C.D. Cal. Dec. 12, 2013) (plaintiff 14 cannot perform work that requires her to grip, grasp, and torque up to two-thirds of the day if 15 she is only capable of performing those actions one-half of the day). See S.S.R. 83-10 (defining “light work”); (see also AR 34). The 16 17 Further, the ALJ’s reasons for rejecting a portion of Dr. Scheinberg’s opinions are not 18 legitimate reasons for discounting Dr. Scheinberg’s assessment that Plaintiff can lift 10 19 pounds no more than “one time per hour,” because: this assessment was based on Dr. 20 Scheinberg’s extensive treatment relationship with Plaintiff, not her subjective complaints to 21 her lawyer; a claimant need not be able to spend two-thirds of her day engaged in lifting 10 22 pound items in order to perform Plaintiff’s reported activities of daily living, i.e., bathing, 23 grooming, preparing simple meals like beans and sandwiches, light grocery shopping, and 24 performing very light housework; and a doctor could advise his patient that, despite – or, 25 perhaps, due to – her inability to spend two-thirds of her day lifting 10 pound items, she 26 would benefit from working with a personal trainer at a gym. Thus, the ALJ failed to 27 articulate legitimate reasons supported by the record for discounting Dr. Scheinberg’s 28 opinion that Plaintiff can lift 10 pounds no more than one time per hour. 16 1 The Court considered whether the ALJ’s error is harmless in light of the ALJ’s 2 determination that Plaintiff can perform only occasional reaching at or above the shoulder on 3 the right and the VE’s testimony that the agricultural sorter occupation does not entail 4 “reaching above the shoulder.” (See AR 67.) However, both the Commissioner and the 5 Merriam Webster Dictionary define “reaching” and “lifting” as distinct activities, thereby 6 precluding the Court from construing the ALJ’s limitation on “reaching” to encompass Dr. 7 Scheinberg’s limitation on “lifting.” See MERRIAM-WEBSTER DICTIONARY, available at 8 https://www.merriam-webster.com (last visited Dec. 14, 2016) (defining “lift” as “to raise 9 from a lower to a higher position” and “reach” as “to stretch out”); POMS § DI 25001.001 10 (defining “lifting” as “raising or lowering an object from one level to another” and 11 “reaching” as “extending the hands and arms in any direction”); see also Casiano v. Colvin, 12 No. 215CV01708TSZDWC, 2016 WL 4487718, at *5 (W.D. Wash. July 26, 2016), report 13 and recommendation adopted, No. C15-1708-TSZ, 2016 WL 4479983 (W.D. Wash. Aug. 14 25, 2016) (“‘reaching” is an activity distinct from lifting”). Further, the VE was not asked 15 about the extent to which an agricultural sorter would engage in lifting 10 pound objects. 16 (See generally AR 63-68.) For these reasons, the ALJ’s error is not “inconsequential to the 17 ultimate nondisability determination,” and the Court cannot reasonably discern the agency’s 18 path without additional fact-finding by the ALJ. See Brown-Hunter, 806 F.3d at 492. 19 Therefore, the matter must be remanded for further proceedings consistent with this Order. 20 See id. 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 17 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the 4 Commissioner is REVERSED, and this case is REMANDED for further proceedings 5 consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this 8 Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for 9 defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATE: December 15, 2016 14 15 ___________________________________ KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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