Melanie A. Moore v. Carolyn W. Colvin, No. 2:2016cv03704 - Document 29 (C.D. Cal. 2017)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings. (mz)
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Melanie A. Moore v. Carolyn W. Colvin Doc. 29 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 11 12 13 14 15 16 17 18 MELANIE A. MOORE, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL,1 ) Acting Commissioner of the ) Social Security Administration,) ) Defendant. ) ) Case No. CV 16-03704-AS MEMORANDUM OPINION AND ORDER OF REMAND 19 20 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED 21 that this matter be remanded for further administrative action 22 consistent with this Opinion. 23 PROCEEDINGS 24 25 26 27 28 On May 26, 2016, Plaintiff filed a Complaint seeking review of the denial of her applications for Disability Insurance Benefits and 1 Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration and is substituted in for Acting Commissioner Caroyln W. Colvin in this case. See 42 U.S.C. § 205(g). Dockets.Justia.com 1 Supplemental Security Income. (Docket Entry No. 1). The parties have 2 consented to proceed before the undersigned United States Magistrate 3 Judge. (Docket Entry Nos. 11-12). On October 25, 2016, Defendant filed 4 an Answer along with the Administrative Record (“AR”). 5 Nos. 15-16). (Docket Entry The parties filed a Joint Stipulation (“Joint Stip.”) on 6 October 4, 2017, setting forth their respective positions regarding 7 Plaintiff’s claim. (Docket Entry No. 28). 8 9 The Court has taken this matter under submission without oral 10 argument. See C.D. Cal. L.R. 7-15; “Order Re: Procedures in Social 11 Security Appeal,” filed June 1, 2016 (Docket Entry No. 9). 12 13 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 14 15 On December 3, 2012, Plaintiff, formerly employed as a certified 16 nurse assistant and sales associate (see AR 176-79), filed applications 17 for Disability Insurance Income and Supplemental Security Income, both 18 alleging a disability since January 1, 2010. (See AR 140-48). On July 19 3, 2014, the Administrative Law Judge (“ALJ”), Edward Graham, heard 20 testimony from Plaintiff (represented by counsel) and vocational expert 21 Howard Goldfarb. (See AR 44-55). On July 25, 2014, the ALJ issued a 22 decision denying Plaintiff’s applications. (See AR 24-31). After 23 determining that Plaintiff had severe impairments –- seizure disorder, 24 anemia, mood disorder and cognitive disorder (AR 26) –- but did not have 25 an impairment or combination of impairments that met or medically 26 equaled the severity of one of the Listed Impairments (AR 26-28), the 27 28 2 1 ALJ found that Plaintiff had the residual functional capacity (“RFC”)2 2 to perform a full range of work at all exertional levels with the 3 following limitations: cannot work at heights or with moving machinery; 4 can understand and remember tasks; can sustain concentration and 5 persistence; can socially interact with the general public, co-workers 6 and supervisors; and can adapt to workplace changes frequently enough to 7 perform unskilled, low-stress jobs that require simple instructions. 8 (AR 28-29). The ALJ then determined that Plaintiff was not able to 9 perform any past relevant work (AR 29-30), but that Plaintiff could 10 perform jobs existing in significant numbers in the national economy, 11 and was therefore not disabled within the meaning of the Social Security 12 Act. (AR 30-31). 13 14 Plaintiff requested that the Appeals Council review the ALJ’s 15 Decision. (See AR 19-20). The request was denied on April 1, 2016. 16 (See AR 1-5). The ALJ’s Decision then became the final decision of the 17 Commissioner, allowing this Court to review the decision. See 42 U.S.C. 18 §§ 405(g), 1383(c). 19 20 PLAINTIFF’S CONTENTIONS 21 22 Plaintiff alleges that the ALJ erred in failing to properly 23 evaluate the opinion of consultative psychological examiner, Dr. 24 Chehrazi. (See Joint Stip. at 4-9, 14-15). 25 26 27 28 2 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 3 1 DISCUSSION 2 3 After consideration of the record as a whole, the Court finds that 4 Plaintiff’s claim of error warrants a remand for further consideration. 5 6 A. 7 8 The ALJ Did Not Properly Reject Psychologist, Avazeh Chehrazi, Ph.D the Opinion of Examining Plaintiff asserts that the ALJ failed to provide any reasons, or 9 even specific and legitimate reasons, for rejecting the opinion of 10 examining psychologist, Dr. Chehrazi. (See Joint Stip. at 4-9, 14-15). 11 Defendant asserts that the ALJ properly evaluated the 12 Chehrazi. opinion of Dr. (See Joint Stip. at 8-11). 13 14 An ALJ must take into account all medical opinions of record. 15 C.F.R. §§ 404.1527(b), 416.927(b). 20 “Generally, a treating physician’s 16 opinion carries more weight than an examining physician’s, and an 17 examining physician’s opinion carries more weight than a reviewing 18 physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 19 2001); see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 20 21 If a treating or examining doctor’s opinion is not contradicted by 22 another doctor, the ALJ can reject the opinion only for “clear and 23 convincing reasons.” Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 24 1155, 1164 (9th Cir. 2008); Lester v. Chater, 81 F.3d at 830-31. If the 25 treating or examining doctor’s opinion is contradicted by another 26 doctor, the ALJ must provide “specific and legitimate reasons” for 27 rejecting the opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 28 2007); Lester v. Chater, supra. 4 1 On July 23, 2013, Avazeh Chehrazi, Ph.D (a clinical psychologist) 2 prepared a report following a complete psychological evaluation of 3 Plaintiff. (See AR 252-57). Based on Plaintiff’s complaints/statements 4 (see AR 252-54), a review of Plaintiff’s medical records and Plaintiff’s 5 medical and social history (see AR 253), and the results of a mental 6 status examination and tests (Trail Making Test, Parts A and B; Wechsler 7 Adult Intelligence Scale; Wechsler’s Memory Scale) (see AR 254-25), Dr. 8 Chehrazi diagnosed Plaintiff, inter alia, with mood disorder (due to a 9 general medical condition), cognitive disorder, NOS, and probable 10 borderline intellectual functioning, and assessed a current Global 11 Assessment Functioning Score of 60. Dr. Chehrazi opined that Plaintiff 12 had the following psychological limitations: Plaintiff would have no 13 difficulties in understanding, remembering and carrying out short, 14 simplistic instructions and in responding to change in a normal 15 workplace setting; and Plaintiff would have moderate difficulties in 16 understanding, remembering and carrying out detailed and complex 17 instructions, in making simplistic work-related decisions without 18 special supervision, in complying with job rules such as safety and 19 attendance, in maintaining persistence and pace in a normal workplace 20 setting, and in interacting appropriately with supervisors, co-workers 21 and peers on a consistent basis. (AR 252-57). 22 23 After extensively summarizing Dr. Chehrazi’s report, including Dr. 24 Chehrazi’s opinion (see AR 29), the ALJ stated, “The undersigned has 25 considered this opinion and gives it great weight as it is consistent 26 with the tests conducted, the treating notes, and the entire record as 27 a whole as discussed herein.” (Id.). 28 5 1 Although the ALJ claimed to give “great weight” to Dr. Chehrazi’s 2 opinion, the ALJ appears not to have taken Dr. Chehrazi’s opinion - that 3 Plaintiff would have moderate difficulties in complying with job rules, 4 such as attendance and safety, in maintaining persistence and pace in a 5 normal workplace setting, and in interacting appropriately with 6 supervisors, co-workers and peers on a consistent basis - into account 7 when determining Plaintiff’s RFC. (AR 28, 256-57). See Richardson v. 8 Colvin, 2016 WL 4487823, *5 (C.D. Cal. Aug. 23, 2016) (ALJ erred in 9 accepting an examining physician’s opinion that the claimant had a 10 moderate limitation in the ability to respond appropriately to usual 11 work situations and changes in a routine work setting but not 12 incorporating that limitation into the RFC); Gentry v. Colvin, 2013 WL 13 6185170, *14-*16 (E.D. Cal. Nov. 26, 2013)(ALJ erred in crediting an 14 examining physician’s opinion that the claimant had a moderate 15 limitation in the ability to interact appropriately with co-workers and 16 supervisors but failing to include such limitation in the RFC or in a 17 hypothetical question to the vocational expert). Respondent correctly 18 points out that the ALJ properly considered Dr. Chehrazi’s opinion 19 concerning Plaintiff’s moderate difficulties in concentration, 20 persistence and pace when determining the severity of Plaintiff’s mental 21 impairments (step 2) and Plaintiff’s RFC, specifically, unskilled, low22 stress work requiring simple instructions (step 3) (see Joint Stip. at 23 10-14, citing inter alia Stubbs-Danielson v. Astrue, 539 F.3d 1169, 24 1174 (9th Cir. 2008) and Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 25 2007)). However, the ALJ did not provide any reasons, much less 26 “specific and legitimate” reasons or “clear and convincing” reasons, for 27 rejecting Dr. Chehrazi’s opinion regarding Plaintiff’s moderate 28 limitations in complying with job rules such as attendance and safety 6 1 and in interacting appropriately with supervisors, co-workers and peers 2 on a consistent basis in determining Plaintiff’s RFC. 3 4 B. Remand Is Warranted 5 6 The decision whether to remand for further proceedings or order an 7 immediate award of benefits is within the district court’s discretion. 8 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 9 useful purpose would be served by further administrative proceedings, or 10 where the record has been fully developed, it is appropriate to exercise 11 this discretion to direct an immediate award of benefits. Id. at 1179 12 (“[T]he decision of whether to remand for further proceedings turns upon 13 the likely utility of such proceedings.”). However, where, as here, the 14 circumstances of the case suggest that further administrative review 15 could remedy the Commissioner’s errors, remand is appropriate. McLeod 16 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, 211 F.3d 17 at 1179-81. 18 19 A remand is appropriate where, as here, the ALJ finds a physician’s 20 opinion credible but then fails to include or address material aspects 21 of that opinion in the FRC determination. See Bagby v. Commissioner, 22 606 Fed. Appx, 888, 890 (9th Cir. 2015). Because outstanding issues 23 must be resolved before a determination of disability can be made, and 24 “when the record as a whole creates serious doubt as to whether the 25 [Plaintiff] is, in fact, disabled within the meaning of the Social 26 Security Act,” further administrative proceedings would serve a useful 27 purpose and remedy defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th 28 Cir. 2014)(citations omitted). 7 1 ORDER 2 3 For the foregoing reasons, the decision of the Commissioner is 4 reversed, and the matter is remanded for further proceedings pursuant to 5 Sentence 4 of 42 U.S.C. § 405(g). 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: October 19, 2017 10 11 12 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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