Janet Miriam Bridges v. Carolyn W. Colvin, No. 2:2016cv01130 - Document 22 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Janet Miriam Bridges v. Carolyn W. Colvin Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JANET MIRIAM BRIDGES, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY, ) ) Defendant. ) ___________________________________) NO. CV 16-1130-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 On February 18, 2016, Plaintiff filed a complaint seeking review 26 of the Commissioner’s denial of disability benefits. On April 5, 27 2016, the parties filed a consent to proceed before a United States 28 Magistrate Judge. On July 13, 2016, Plaintiff filed a motion for Dockets.Justia.com 1 summary judgment. On October 27, 2016 Defendant filed “Defendant’s 2 Memorandum, etc.,” which this Court construes as a cross-motion for 3 summary judgment. 4 without oral argument. 5 2016. The Court has taken the motions under submission See L.R. 7-15; “Order,” filed February 19, 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 9 Plaintiff asserts disability since May 28, 2008, based largely on 10 allegedly extreme sensitivity to synthetic fumes and odors, following 11 workplace exposure to trichloroethylene (“TCE”) (Administrative Record 12 (“A.R.”) 55-70, 334, 1033-57). 13 for further administrative proceedings because of material ambiguities 14 and inconsistencies in the Administrative Law Judge’s previous adverse 15 decision. 16 Bridges v. Colvin, CV 13-5618-E); see also A.R. 1138 (Appeals 17 Council’s subsequent remand order). 18 (“ALJ”) previously had found, inter alia, that Plaintiff: (1) has 19 severe “multiple chemical sensitivity syndrome, asthma extrinsic, and 20 migraine headaches” (A.R. 17); (2) retains the residual functional 21 capacity to perform light work “except she should avoid exposure to 22 fumes, dust, and industrial pollutants . . .” (A.R. 19); and (3) with 23 this capacity, Plaintiff could perform clerical jobs (A.R. 25 24 (purportedly adopting vocational expert testimony at A.R. 70-72)). 25 The ALJ’s previous hypothetical questioning of the vocational expert 26 had failed to describe accurately the residual functional capacity the 27 ALJ had found to exist. 28 “a work environment that’s relatively free of dust and fumes, . . . The Court previously remanded the case See A.R. 1124-31 (Memorandum Opinion and Order of Remand in The Administrative Law Judge Instead, the ALJ’s questioning had referenced 2 1 the kinds of . . . fumes and dust that you’re exposed to in a . . . 2 manufacturing situation” (A.R. 70-71). 3 4 Following remand, the same Administrative Law Judge held another 5 hearing and reviewed additional evidence (A.R. 1030-1511). The ALJ 6 once again found Plaintiff not disabled (A.R. 992-1020). 7 determined that Plaintiff has severe asthma and multiple chemical 8 sensitivities, but retains the residual functional capacity for light 9 work involving simple repetitive tasks “in an environment relatively 10 free of dust and fumes consistent with an office work environment as 11 opposed to a manufacturing work environment” (A.R. 995, 1001). 12 ALJ found that, with this capacity, Plaintiff could perform clerical 13 jobs (i.e., office helper, mail clerk, and copy machine operator) 14 (A.R. 1018-19 (adopting vocational expert testimony at A.R. 1068-69)). 15 The vocational expert had testified that if a person were precluded 16 from exposure to “fumes, odors, dust, gases, ventilation, things like 17 perfume, cologne, cosmetics, carpet . . . odors [sic], [and] scents” 18 there would be no jobs that person could perform (A.R. 1070; see also 19 A.R. 72-73 (vocational expert similarly testifying at first hearing)). The ALJ The 20 21 The Appeals Council denied review, stating: 22 23 [T]he [ALJ’s] Final Decision properly weighs the medical 24 opinions of Drs. Dahlgreen [sic], DeSouza, and Morgan, as 25 well as the remaining medical opinion evidence. . . . 26 Final Decision appropriately followed the guidance of Social 27 Security Ruling 96-7p in evaluating the credibility of the 28 claimant’s allegations, identifying multiple bases that 3 [T]he 1 undermine that credibility, and properly addressed the 2 statements provided by third parties. 3 properly presented the assessed residual functional capacity 4 to the vocational expert at the claimant’s hearing held on 5 March 18, 2015. 6 concludes that the Final Decision identified and properly 7 addressed the insufficiencies identified by the court. Further, the [ALJ] For these reasons, the Appeals Council 8 9 (A.R. 978-81 (internal citations omitted)). 10 11 STANDARD OF REVIEW 12 13 Under 42 U.S.C. section 405(g), this Court reviews the 14 Administration’s decision to determine if: (1) the Administration’s 15 findings are supported by substantial evidence; and (2) the 16 Administration used correct legal standards. 17 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008). 18 evidence is “such relevant evidence as a reasonable mind might accept 19 as adequate to support a conclusion.” 20 389, 401 (1971) (citation and quotations omitted); see Widmark v. 21 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 4 See Carmickle v. Substantial Richardson v. Perales, 402 U.S. 1 DISCUSSION 2 3 The ALJ has twice accepted Plaintiff’s contention that she 4 suffers from severe multiple chemical sensitivity (A.R. 17, 995).1 5 the first decision, the ALJ found that Plaintiff should avoid exposure 6 to fumes, dust, and industrial pollutants (A.R. 19). 7 the ALJ found that Plaintiff could work “in an environment relatively 8 free of dust and fumes consistent with an office work environment” 9 (A.R. 1001). After remand, In reaching this conclusion, the ALJ analyzed the 10 11 12 1 For a general discussion of the diagnosis of multiple chemical sensitivity, see Gibbard v. Linn-Bento Housing Authority, 219 F. Supp. 2d 1130 (D. Or. 2002). 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Occupational and environmental medicine physician Dr. James Dahlgren authored a letter dated March 24, 2010, wherein he stated that Plaintiff experiences Multiple Chemical Sensitivity, “whereby brief exposures to various chemicals at low doses result in central nervous system dysfunction manifested by severe headache and nausea,” requiring rest for hours or days to recover (A.R. 721-22). Dr. Dahlgren opined that Plaintiff is totally disabled (A.R. 722; see also A.R. 867-68 (Dr. Dahlgren’s “Physical Capacities Evaluation” for Plaintiff finding specific environmental limitations); A.R. 870-71 (letter explaining the bases for Dr. Dahlgren’s findings)). The ALJ rejected Dr. Dahlgren’s opinions (A.R. 1015-16). Internist rheumatologist Dr. David Silver reviewed the record and examined Plaintiff for purposes of testifying as an expert witness in Plaintiff’s separate civil litigation. See A.R. 142-251 (Dr. Silver’s deposition). Dr. Silver opined that Plaintiff had suffered a “significant neurologic injury” from her TCE exposure, resulting in her chemical sensitivity, asthma, and other neurologic symptoms (A.R. 234-35; see also A.R. 973-76 (Declaration of David Silver). Dr. Silver opined that Plaintiff was “incapable of returning to the open labor market” because Plaintiff would have “frequent episodes, whether it [sic] be related to a chemical that she is exposed to or some stimulus, be it her memory, et cetera, that she would not be considered a reliable employee” (A.R. 235, 240-41). The ALJ also rejected Dr. Silver’s opinions (A.R. 1017-18). 5 In 1 extensive medical record and purportedly gave “great weight” to the 2 opinions of Drs. Levine, Soll, Harrison, Thompson, Allems, Soffer, 3 DeSouza, Morgan, and Saleh, as assertedly “consistent with the medical 4 records as a whole, findings on physical and mental examinations and 5 objective testing results” (A.R. 1001-07, 1014-18).2 6 below, the ALJ’s analysis does not adequately support the ALJ’s 7 conclusion under the applicable standards. As explained 8 9 A. Summary of the Relevant Medical Opinions 10 11 Consultative examiner Dr. Gerald Levine, an internal medicine and 12 pulmonary disease specialist, examined Plaintiff on December 11, 2008, 13 and reported no abnormalities (A.R. 600-04). 14 assertedly were normal (A.R. 602, 606-07). 15 no respiratory complaints and no documented respiratory disease (A.R. 16 603). 17 limitations (A.R. 603; see also A.R. 605 (Dr. Levine’s Work Capacity 18 Evaluation form dated December 31, 2008, noting no pulmonary limits 19 and no preclusion from temperature extremes, airborne particles, gas, 20 fumes, or electromagnetic radiation)). Pulmonary function tests Plaintiff reportedly had Dr. Levine opined that Plaintiff would have no pulmonary 21 22 Occupational medicine physician Dr. Robert Harrison examined 23 Plaintiff several times between August 25, 2008, and January 22, 2009, 24 and noted continued intermittent left-sided sensory problems along the 25 26 2 27 28 Elsewhere in the decision, however, the ALJ stated that he had given “little weight” to other opinions rendered by some of these same physicians (Drs. Harrison, Thompson and Saleh) (A.R. 1014). 6 1 face and hands, intermittent cognitive problems, and occasional 2 headaches (A.R. 546-47, 572-73, 593-94; see also A.R. 1351 (Dr. 3 Harrison testifying that he found no objective evidence to corroborate 4 Plaintiff’s subjective complaints)). 5 trigeminal neuralgia (A.R. 573). 6 indicated that several more weeks were necessary to determine whether 7 Plaintiff’s neurological symptoms would improve (A.R. 546). 8 March 5, 2009, Dr. Harrison again examined Plaintiff and stated that 9 Plaintiff was improving with migraine treatment, confirming his Dr. Harrison diagnosed left As of January 2009, Dr. Harrison On 10 working diagnosis that Plaintiff had toxic chemical exposure with the 11 onset of migraine headaches (A.R. 632). 12 letter dated May 18, 2009, in which Dr. Harrison diagnosed toxic 13 chemical exposure, migraine headaches, and trigeminal neuralgia, and 14 opined that Plaintiff could not return to her work as an air traffic 15 controller as a consequence of her cognitive impairment and headaches 16 (A.R. 445-46; see also A.R. 1384-85 (Dr. Harrison opining that 17 Plaintiff has nerve damage to the trigeminal nerve due to TCE exposure 18 and that her symptoms were consistent with TCE exposure)). 19 letter, Dr. Harrison did not offer an opinion concerning Plaintiff’s 20 capacity to work at jobs other than the job of air traffic 21 controller. 22 evaluation form that as of January 22, 2009, Plaintiff’s condition 23 precluded exposure to gas and fumes (A.R. 1390). 24 opined that as of June 1, 2009, Plaintiff should have no exposure to 25 chemical solvents and fumes (A.R. 1398, 1403). Dr. Harrison authored a In this Dr. Harrison apparently did opine in a work capacity Dr. Harrison also 26 27 28 On or about January 30, 2009, Dr. Bruce Thompson, an occupational medicine specialist, examined Plaintiff and reviewed the medical 7 1 record (A.R. 420-28). Plaintiff apparently said she occasionally 2 experienced increased sensitivity to smell (A.R. 422). 3 her cardiovascular and neurological examinations were largely normal, 4 and Dr. Thompson referenced no environmental restrictions (A.R. 425-29 5 (limiting Plaintiff only to non “safety-sensitive work”); see also 6 A.R. 543-45 (supplemental opinion dated March 5, 2009, opining that it 7 was unlikely that Plaintiff’s complaints of mental lapses and speech 8 syntax were due to TCE exposure)). 9 Capacity Evaluation form dated January 30, 2009, which checks no 10 environmental limitations (i.e., no preclusions from temperature 11 extremes, airborne particles, gas, fumes, or electromagnetic 12 radiation) (A.R. 623).3 Reportedly, Dr. Thompson prepared a Work 13 14 Treating neurologist Dr. Mark Saleh authored a letter dated 15 April 16, 2009, in which Dr. Saleh opined that Plaintiff’s sensory and 16 cognitive symptoms were migraine equivalents triggered by toxic 17 exposure (A.R. 454). 18 medication which gave Plaintiff “some improvement” (A.R. 454). 19 Saleh opined that it would not be safe for Plaintiff to return to her 20 work as an air traffic controller given her cognitive impairment (A.R. 21 454; see also A.R. 455-60 (Dr. Saleh’s treatment notes from January, 22 February, March and April 2009 reflecting minimal findings on 23 examination but reports of cognitive and speech issues)). Dr. Saleh reportedly had treated Plaintiff with Dr. Plaintiff 24 25 26 27 28 3 Dr. Harrison reviewed Dr. Thompson’s January 30, 2009 evaluation and, in a letter dated April 13, 2009, disagreed with certain of Dr. Thompson’s conclusions (A.R. 439-40). Dr. Harrison disagreed that Plaintiff’s transient trigeminal neuralgia secondary to exposure to TCE had resolved, and also disagreed with Dr. Thompson’s conclusion that Plaintiff’s complaints were not due to TCE exposure (A.R. 439). 8 1 returned to Dr. Saleh on May 14, 2009, reporting improvement on 2 medications, feeling cognitively “clearer” and having less stuttering, 3 with identifiable triggers of wine consumption, stress/anger, and 4 being overly tired (A.R. 652). 5 current medications (A.R. 652). 6 and reported worsening disorientation, which Dr. Saleh thought might 7 be a medication side effect or a residual symptom, so he decreased her 8 medication (A.R. 653). 9 reporting worsening stuttering on decreased medication, as well as Dr. Saleh continued Plaintiff’s Plaintiff returned on July 20, 2009, Plaintiff returned on August 20, 2009, 10 disturbed sleep (A.R. 654). Dr. Saleh indicated that Plaintiff’s 11 cognitive and sensory symptoms seemed well controlled (A.R. 654). 12 Plaintiff returned on July 12, 2010, reporting improvement in 13 cognition and with her stuttering (A.R. 858). 14 again on November 19, 2010, she reported “breakthrough events” in 15 association with exposure to strong chemical odors such as facial 16 paralysis, cognitive clouding, and stuttering (A.R. 856-57). 17 Saleh opined that strong odors may trigger Plaintiff’s migraines, and 18 told Plaintiff to continue to avoid exposure to strong odors (A.R. 19 856). When Plaintiff returned Dr. 20 21 Dr. Thomas Allems examined Plaintiff, reviewed the medical 22 record, and prepared an “Internal Medicine/Occupational Medicine and 23 Toxicology Referee Evaluation” dated February 5, 2010 (A.R. 677-96). 24 Dr. Allems described Plaintiff’s condition as having a “distinctly 25 functional (psychologically mediated, hypersomatic) flavour” “not 26 related to any organic effect” of the TCE exposure (A.R. 689). 27 Allems did observe Plaintiff begin to stutter and to adopt “a rather 28 bizarre syncopated speech pattern” for which Dr. Allems discerned no 9 Dr. 1 neurological explanation (A.R. 1411, 1419). Unlike other doctors, Dr. 2 Allems opined, inter alia, that: (1) Plaintiff’s symptoms are 3 “dominated by psychological factors and are unexplained on a medical 4 or toxicological basis”; (2) TCE exposure would not explain a 5 “migraine equivalent” diagnosis; and (3) Plaintiff has never had 6 “trigeminal neuralgia” (A.R. 693-94). 7 Plaintiff is unable to work as an air traffic controller, and offered 8 no other opinion concerning Plaintiff’s ability to work or need for 9 environmental limitations (A.R. 693-95). Dr. Allems agreed that 10 11 Consultative neurologist Dr. Robin Soffer prepared a neurological 12 evaluation of Plaintiff dated July 22, 2010 (A.R. 753-57). Plaintiff 13 reportedly complained of cognitive deficits, facial numbness, 14 headaches, and tremors since her TCE exposure, and specifically said 15 she could not return to work due to a “new sensitivity” in that she 16 could not tolerate carpet odors, air fresheners or perfume (A.R. 753). 17 According to Dr. Soffer, examination results were largely normal (A.R. 18 755-56). 19 756). 20 “relatively fume and dust free and well ventilated,” and could take 21 public transportation (A.R. 756). Dr. Soffer, diagnosed gastroesophageal reflux disease (A.R. Dr. Soffer opined that Plaintiff could work in a place 22 23 State agency review physician Dr. DeSouza prepared a “Physical 24 Residual Functional Capacity Assessment” form dated September 2, 2010 25 (A.R. 771-76). 26 avoiding moderate exposure to “[f]umes, odors, dusts, gases, poor 27 ventilation, etc.” due to “restrictive lung disease” (A.R. 775). 28 March 8, 2011, State agency review physician Dr. B. Morgan agreed with Dr. DeSouza noted environmental restrictions for 10 On 1 Dr. DeSouza’s residual functional capacity assessment (A.R. 865). 2 3 Plaintiff presented to Dr. Mark Soll on February 8, 2012, 4 complaining of a cough (A.R. 878-79). Dr. Soll diagnosed asthma, 5 allergic rhinitis due to pollen, and unspecified chest pain, and 6 prescribed an inhaler (A.R. 878-79). 7 asthma is “mild to moderate in severity but not disabling” (A.R. 8 879).4 Dr. Soll opined that Plaintiff’s 9 10 B. The ALJ Erred in Failing Adequately to Explain How He 11 Determined the Particular Environmental Limitations in 12 Plaintiff’s Residual Functional Capacity Assessment. 13 14 Although the ALJ purported to give “great weight” to the above- 15 summarized medical opinions in determining that Plaintiff could 16 perform work, the ALJ did not explain adequately how those seemingly 17 conflicting opinions support the ALJ’s residual functional capacity 18 assessment. 19 opinion of record. 20 Security Ruling (“SSR”) 96-8p (“If the RFC assessment conflicts with 21 an opinion from a medical source, the adjudicator must explain why the 22 opinion was not adopted”).5 23 ALJ “cannot reject [medical] evidence for no reason or the wrong The ALJ must “consider” and “evaluate” every medical 20 C.F.R. § 404.1527(b) and (c); see Social In this consideration and evaluation, an 24 25 26 27 28 4 Dr. Soll had ordered a “Pulmonary Function Study and Methacholine Challenge” on November 7, 2011, which showed a “moderately positive methacholine challenge” (A.R. 882-95). 5 Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 11 1 reason.” Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981); see 2 Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (ALJ may not 3 make his or her own lay medical assessment). 4 above summary, the medical opinions on which the ALJ purportedly 5 relied are inconsistent, and no opinion specifically endorses the 6 particular environmental limitations the ALJ defined in the residual 7 functional capacity assessment. As demonstrated by the 8 9 The opinions of Drs. Levine and Thompson could support a 10 determination that Plaintiff has no environmental restrictions, and 11 therefore might also support the more limiting environmental 12 restrictions the ALJ adopted. 13 rely only on the opinions of Drs. Levine and Thompson.6 14 purported to rely on the conflicting opinions of Drs. Harrison, Saleh, 15 Soffer, DeSouza, and Morgan, although the ALJ did not adopt all the 16 limitations set forth by these doctors. 17 there is no competent evidence in the record suggesting that a 18 limitation to an environment “relatively free of dust and fumes” 19 “consistent with an office work environment” accurately encompasses 20 the environmental limitations any of these doctors assessed. 21 was not free to accept or reject any of these doctors’ conclusions 22 concerning Plaintiff’s environmental limitations without explaining 23 the ALJ’s reasons for doing so. 24 specific support from an expert source, and without potentially 25 synthesizing testimony from a medical expert, the ALJ apparently However, the ALJ did not purport to The ALJ also Perhaps most significantly, The ALJ Without adequate explanation, without 26 27 28 6 The Court observes that the opinions of Drs. Levine and Thompson were given relatively early in Plaintiff’s treatment history. 12 1 defined his own particular environmental limitations for Plaintiff. 2 This was error. 3 12, 2016) (ALJ erred in failing fully to account for medical opinions 4 in determining claimant’s residual functional capacity where claimant 5 had been diagnosed with multiple chemical sensitivity); Jeffries v. 6 Colvin, 2013 WL 6385617 (D. Ariz. Dec. 6, 2013) (same). See Joost v. Colvin, 2016 WL 3865924 (W.D. Wash. July 7 8 9 An error “is harmless where it is inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 10 (9th Cir. 2012) (citations and quotations omitted). In light of the 11 vocational expert’s testimony, the Court cannot deem the ALJ’s errors 12 to have been harmless. 13 14 C. Remand is Appropriate. 15 16 Remand is appropriate because the circumstances of this case 17 suggest that further administrative review could remedy the ALJ’s 18 errors. 19 INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 20 administrative determination, the proper course is remand for 21 additional agency investigation or explanation, except in rare 22 circumstances); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) 23 (“Unless the district court concludes that further administrative 24 proceedings would serve no useful purpose, it may not remand with a 25 direction to provide benefits”); Treichler v. Commissioner, 775 F.3d 26 1090, 1101 n.5 (9th Cir. 2014) (remand for further administrative 27 proceedings is the proper remedy “in all but the rarest cases”); 28 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (court will McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2010); see also 13 1 credit-as-true medical opinion evidence only where, inter alia, “the 2 record has been fully developed and further administrative proceedings 3 would serve no useful purpose”); Harman v. Apfel, 211 F.3d 1172, 1180- 4 81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further 5 proceedings rather than for the immediate payment of benefits is 6 appropriate where there are “sufficient unanswered questions in the 7 record”). 8 9 There remain significant unanswered questions in the present 10 record. Cf. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) 11 (remanding for further proceedings to allow the ALJ to “comment on” 12 the treating physician’s opinion). 13 the medical evidence that Plaintiff’s condition may have been 14 worsening over time, it is not clear on the present record whether the 15 ALJ would be required to find Plaintiff disabled for the entire 16 claimed period of disability even if the more restrictive medical 17 opinions were fully credited. 18 (9th Cir. 2010). 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// Moreover, since it appears from See Luna v. Astrue, 623 F.3d 1032, 1035 14 1 CONCLUSION 2 3 For all of the foregoing reasons,7 Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: December 8, 2016. 10 11 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. “[E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled.” Garrison v. Colvin, 759 F.3d at 1021. 15
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