Natosha Sanders v. Nancy A. Berry Hill, No. 2:2017cv00320 - Document 25 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered REVERSING the Commissioner's decision, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this memorandum decision. (See Order for details) (bem)
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Natosha Sanders v. Nancy A. Berry Hill Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 NATOSHA SANDERS, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. CV 17-0320-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying her applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned under 28 U.S.C. § 636(c). 24 Court on the parties’ Joint Stipulation, filed November 13, 2017, 25 which the Court has taken under submission without oral argument. 26 For the reasons stated below, the Commissioner’s decision is 27 reversed and this action is remanded for further proceedings. The parties consented to the jurisdiction of the The matter is before the 28 1 Dockets.Justia.com 1 2 II. BACKGROUND Plaintiff was born in 1975. (Administrative Record (“AR”) 3 54, 66, 157, 161.) 4 as a court clerk, an in-home caregiver, and a bookkeeper (AR 32, 5 177, 189). 6 She completed 12th grade (AR 188) and worked On November 5 and 19, 2013, Plaintiff applied for DIB and 7 SSI, respectively, alleging that she had been unable to work 8 since March 6, 2013, because of lower-back pain, arthritis, 9 depression, anxiety, and a spinal tear. (AR 54-55, 66-67, 157- 10 66, 187.) 11 87-90), she requested a hearing before an Administrative Law 12 Judge (AR 92-94). 13 Plaintiff testified, as did a vocational expert and two medical 14 experts. 15 2015, the ALJ found Plaintiff not disabled. 16 Plaintiff sought Appeals Council review (AR 9-10), which was 17 denied on November 15, 2016 (AR 1-6). 18 III. STANDARD OF REVIEW 19 After her applications were denied (AR 78-79, 82-85, A hearing was held on March 12, 2015, at which (See AR 29-53.) In a written decision issued April 23, (AR 15-28.) This action followed. Under 42 U.S.C. § 405(g), a district court may review the 20 Commissioner’s decision to deny benefits. 21 decision should be upheld if they are free of legal error and 22 supported by substantial evidence based on the record as a whole. 23 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 24 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 25 evidence means such evidence as a reasonable person might accept 26 as adequate to support a conclusion. 27 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 28 It is more than a scintilla but less than a preponderance. 2 The ALJ’s findings and Substantial Richardson, 402 U.S. at 1 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 2 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 3 substantial evidence supports a finding, the reviewing court 4 “must review the administrative record as a whole, weighing both 5 the evidence that supports and the evidence that detracts from 6 the Commissioner’s conclusion.” 7 720 (9th Cir. 1998). 8 either affirming or reversing,” the reviewing court “may not 9 substitute its judgment” for the Commissioner’s. 10 IV. To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 11 People are “disabled” for purposes of receiving Social 12 Security benefits if they are unable to engage in any substantial 13 gainful activity owing to a physical or mental impairment that is 14 expected to result in death or has lasted, or is expected to 15 last, for a continuous period of at least 12 months. 16 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 17 1992). 42 U.S.C. 18 A. 19 The ALJ follows a five-step evaluation process to assess The Five-Step Evaluation Process 20 whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 21 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 22 1995) (as amended Apr. 9, 1996). 23 Commissioner must determine whether the claimant is currently 24 engaged in substantial gainful activity; if so, the claimant is 25 not disabled and the claim must be denied. 26 416.920(a)(4)(i). In the first step, the §§ 404.1520(a)(4)(i), 27 If the claimant is not engaged in substantial gainful 28 activity, the second step requires the Commissioner to determine 3 1 whether the claimant has a “severe” impairment or combination of 2 impairments significantly limiting her ability to do basic work 3 activities; if not, the claimant is not disabled and her claim 4 must be denied. 5 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 6 impairments, the third step requires the Commissioner to 7 determine whether the impairment or combination of impairments 8 meets or equals an impairment in the Listing of Impairments set 9 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 10 disability is conclusively presumed. 11 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), 12 If the claimant’s impairment or combination of impairments 13 does not meet or equal an impairment in the Listing, the fourth 14 step requires the Commissioner to determine whether the claimant 15 has sufficient residual functional capacity (“RFC”)1 to perform 16 her past work; if so, she is not disabled and the claim must be 17 denied. 18 has the burden of proving she is unable to perform past relevant 19 work. 20 burden, a prima facie case of disability is established. 21 that happens or if the claimant has no past relevant work, the 22 Commissioner then bears the burden of establishing that the 23 claimant is not disabled because she can perform other 24 substantial gainful work available in the national economy. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. If 25 1 26 27 28 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 2 That determination comprises the fifth and final step in the 3 sequential analysis. 4 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 5 B. 6 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 7 substantial gainful activity since March 6, 2013, the alleged 8 onset date. 9 had medically determinable impairments of “degenerative disc (AR 17.) At step two, she concluded that Plaintiff 10 disease of the lumbar spine, obesity, and asthma” that “in 11 combination” were severe. 12 determined that Plaintiff’s impairments did not meet or equal a 13 listing. 14 had the RFC to perform less than the full range of sedentary 15 work: (AR 20-21.) (AR 18-20.) At step three, she At step four, the ALJ found that Plaintiff 16 [She] can lift and carry 10 pounds occasionally and 10 17 pounds frequently. 18 an eight-hour day and sit for six hours of an eight-hour 19 day. [She] cannot climb ladders, ropes, or scaffolds. 20 [She] cannot work around concentration of fumes, dust, or 21 irritants. 22 injections every three months, she would be absent from 23 the time of the procedure and would be off from work two 24 to three days after the procedure. She can stand and walk six hours of Further, due to [her] need for epidural 25 (AR 21-22.) 26 past relevant work as a court clerk and a bookkeeper. 27 25.) The ALJ concluded that Plaintiff could perform her Accordingly, she found Plaintiff not disabled. 28 5 (AR 24(AR 25.) 1 V. DISCUSSION 2 Plaintiff argues that the ALJ improperly rejected the 3 opinion of internist Harvey Alpern, a consulting medical expert. 4 (J. Stip. at 4-8, 15-16.)2 5 failing to give a clear and convincing reason for rejecting part 6 of Dr. Alpern’s opinion, and the matter must be remanded for 7 further proceedings. 8 A. 9 The ALJ Improperly Evaluated the Medical-Opinion Evidence 10 11 As discussed below, the ALJ erred by 1. Applicable law Three types of physicians may offer opinions in Social 12 Security cases: those who directly treated the plaintiff, those 13 who examined but did not treat the plaintiff, and those who did 14 neither. 15 is generally entitled to more weight than an examining 16 physician’s, and an examining physician’s opinion is generally 17 entitled to more weight than a nonexamining physician’s. 18 see §§ 404.1527, 416.927.3 Lester, 81 F.3d at 830. A treating physician’s opinion Id.; But “the findings of a nontreating, 19 2 20 21 22 Plaintiff did not raise this issue to the Appeals Council (see AR 236-38), nor did she argue at the hearing that she was disabled based on the medical expert’s testimony (see generally AR 29-53). But because Defendant has not argued that Plaintiff has forfeited her right to raise the issue here, the Court addresses it on its merits. 23 3 24 25 26 27 28 Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. When, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. 6 1 nonexamining physician can amount to substantial evidence, so 2 long as other evidence in the record supports those findings.” 3 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) 4 (as amended). 5 expert, who is subject to questioning by Plaintiff’s 6 representative. 7 1995). 8 9 This is especially true of a testifying medical Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. The ALJ may disregard a physician’s opinion regardless of whether it is contradicted. Magallanes v. Bowen, 881 F.2d 747, 10 751 (9th Cir. 1989); see Carmickle v. Comm’r, Soc. Sec. Admin., 11 533 F.3d 1155, 1164 (9th Cir. 2008). 12 is not contradicted by other medical-opinion evidence, however, 13 it may be rejected only for “clear and convincing” reasons. 14 Magallanes, 881 F.2d at 751; Carmickle, 533 F.3d at 1164 (citing 15 Lester, 81 F.3d at 830-31). 16 must provide only “specific and legitimate reasons” for 17 discounting it. 18 F.3d at 830-31). 19 physician’s opinion, moreover, depends on whether it is 20 consistent with the record and accompanied by adequate 21 explanation, among other things. 22 416.927(c)(3)-(6). 23 afforded the opinions of nonexamining physicians. 24 §§ 404.1527(e), 416.927(e). When a physician’s opinion When it is contradicted, the ALJ Carmickle, 533 F.3d at 1164 (citing Lester, 81 The weight given a treating or examining §§ 404.1527(c)(3)-(6), Those factors also determine the weight The ALJ considers findings by state- 25 26 27 28 Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking”). Accordingly, citations to 20 C.F.R. §§ 404.1527 and 416.927 are to the versions in effect from August 24, 2012, to March 26, 2017. 7 1 2 agency medical consultants and experts as opinion evidence. Id. An ALJ need not recite “magic words” to reject a physician’s 3 opinion or a portion of it; the court may draw “specific and 4 legitimate inferences” from the ALJ’s opinion. 5 F.2d at 755. 6 context of “the entire record as a whole,” and if the “‘evidence 7 is susceptible to more than one rational interpretation,’ the 8 ALJ’s decision should be upheld.” 9 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). 10 11 2. Magallanes, 881 The Court must consider the ALJ’s decision in the Ryan v. Comm’r of Soc. Sec., Relevant background Dr. Alpern reviewed Plaintiff’s medical record and testified 12 on March 12, 2015, that she had a history of “distant” asthma, 13 obesity, and degenerative disc disease. 14 though her degenerative disc disease did not “show classic 15 impingement,” “atrophy,” or “associated findings of ambulation 16 problems,” “she would have restrictions.” 17 to a sedentary RFC with “[n]o ropes or ladders, and no 18 concentrated noxious fumes, dust or irritants.” 19 also would be absent from work “[e]very three months when she has 20 her [epidural] procedure.” 21 time Plaintiff would need off for the procedure, Dr. Alpern 22 answered “[a] week,” “maybe less.” 23 inquired whether there was a “reasonable likelihood that 24 [Plaintiff’s doctors] would continue [her] epidurals every three 25 months on a sustained basis.” 26 that if the epidurals “demonstrate[d] true effectiveness[,] they 27 may” continue administering them, but “[o]therwise they would 28 recommend surgery.” (Id.) 8 (Id.) He noted that He limited her (AR 45.) She When the ALJ asked how much (Id.) (AR 51.) (Id.) (AR 44.) The ALJ further Dr. Alpern testified 1 The ALJ found that Dr. Alpern’s testimony was “entitled to 2 significant evidentiary weight” because he “had the opportunity 3 to review all of [Plaintiff’s] evidence of record prior to the 4 hearing, listened to, and observed [Plaintiff] at the hearing.” 5 (AR 18.) 6 with the remainder of the credible evidence of record.” She further found that his testimony was “consistent (AR 21.) 7 At the hearing, one of the hypotheticals the ALJ presented 8 to the VE limited Plaintiff to “need[ing] to be off two to five 9 days in one week every three months.” (AR 50.) The VE testified 10 that if her absences were “at the two or three day level it would 11 not be a problem” but “at that upper range, getting into the four 12 and five days, [Plaintiff would not] be able to maintain 13 employment.” 14 “due to [her] need for epidural injections every three months, 15 [Plaintiff] would be absent from the time of the procedure and 16 would be off from work two to three days after the procedure.” 17 (AR 22.) 18 (AR 51.) 3. In her decision, the ALJ assessed that Analysis 19 Plaintiff contends that the ALJ “failed to provide a valid 20 explanation for omitting Dr. Alpern’s opinion, of which he gave 21 great weight to, limiting [Plaintiff] to miss a week[,] maybe 22 less[,] every three months for epidural injections.” 23 at 8.) 24 uncontradicted, the ALJ was required to provide a “clear and 25 convincing” reason for rejecting it. 26 1164. 27 and convincing. 28 Alpern’s opinion was error. (J. Stip. Because Dr. Alpern’s opinion concerning the epidurals was See Carmickle, 533 F.3d at But she provided no reason, must less one that was clear Her failure to explain that departure from Dr. See Reddick, 157 F.3d at 725 (ALJ 9 1 must explain why his conclusions, rather than doctors’, are 2 correct); Burden v. Berryhill, No. 2:17-cv-00222-RBL, 2017 WL 3 4417225, at *2 (W.D. Wash. Oct. 5, 2017) (“[T]he ALJ erred by 4 tacitly rejecting part of [a nonexamining physician’s] opinion 5 without explanation.”). 6 Defendant contends that “[t]o the extent there was a 7 question as to how much work Plaintiff would miss when she had 8 her injections, the ALJ reasonably resolved the question.” 9 Stip. at 10-11 (citing Tommasetti v. Astrue, 533 F.3d 1035, 1041- (J. 10 42 (9th Cir. 2008)).) 11 maybe less[] does not mean the ceiling is three days and the 12 floor is two days — rather[,] the ceiling is five days and the 13 floor is two.” 14 and convincing reason for excluding from Plaintiff’s RFC the high 15 end of Dr. Alpern’s assessment of her expected absenteeism, and 16 she did not do so, despite giving his opinion “significant 17 evidentiary weight.” 18 Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (district court 19 must “review the ALJ’s decision based on the reasoning and 20 factual findings offered by the ALJ — not post hoc 21 rationalizations that attempt to intuit what the adjudicator may 22 have been thinking”). 23 found Plaintiff “not credible” (AR 23) and “reasonably found that 24 [her] reported daily activities were not limited to the extent 25 expected if she had to be off her feet for five days,” a finding 26 Plaintiff has not challenged on appeal. 27 But the ALJ expressly found that Dr. Alpern’s “testimony [was] 28 consistent with the remainder of the credible evidence of record” But as argued by Plaintiff, “[a] week (Id. at 16.) The ALJ needed to provide a clear (See AR 18, 21); Bray v. Comm’r of Soc. Defendant further points out that the ALJ 10 (J. Stip. at 11-12.) 1 (AR 21), and her discounting of Plaintiff’s credibility did not 2 absolve her of the need to give a sufficient reason for not 3 adopting a portion of the doctor’s opinion. 4 Moreover, the ALJ’s failure to provide a reason for 5 rejecting Dr. Alpern’s opinion was not harmless. 6 can be found only “when it [is] clear from the record that an 7 ALJ’s error was ‘inconsequential to the ultimate nondisability 8 determination.’” 9 Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. Harmless error Robbins, 466 F.3d at 885 (quoting Stout v. 10 2006)). 11 “four or five days” every three months would mean she was not 12 “able to maintain employment.” 13 within the upper range of Dr. Alpern’s opinion that Plaintiff 14 would be absent “[a] week . . . maybe less” for her procedures. 15 (See AR 45, 51.) 16 the ALJ’s RFC of “two to three days” was determinative of 17 Plaintiff’s disability, and thus the ALJ’s error was not 18 harmless.4 19 2015) (finding error not harmless “where the ALJ did not even 20 mention [doctor’s] opinion” regarding one of plaintiff’s 21 limitations). 22 23 The VE specifically testified that Plaintiff’s absence (AR 51.) Four or five days falls The difference between Dr. Alpern’s opinion and See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. Accordingly, because the ALJ failed to provide a clear and convincing reason for rejecting Dr. Alpern’s opinion on 24 25 26 27 28 4 Moreover, Dr. Alpern testified that “[i]f [the epidurals] demonstrate[d] true effectiveness,” Plaintiff’s doctors might continue administering them “on a sustained basis.” (AR 51.) The epidurals were in fact effective in decreasing her pain (see, e.g., AR 543 (epidural steroid injection “with good results” (emphasis omitted)), 1079 (same), 1138 (same)), as noted by the ALJ (AR 23). 11 1 Plaintiff’s expected absenteeism, remand is warranted. 2 See Reddick, 157 F.3d at 725. 3 B. 4 Plaintiff contends that the Court “should reverse and order Remand for Further Proceedings Is Appropriate 5 the payment of benefits.” 6 here, an ALJ errs, the Court “ordinarily must remand to the 7 agency for further proceedings.” 8 1041, 1045 (9th Cir. 2017) (as amended Jan. 25, 2018); see also 9 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as (J. Stip. at 8, 16-17.) But when, as Leon v. Berryhill, 880 F.3d 10 amended); Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). 11 Here, further administrative proceedings would serve the 12 useful purpose of allowing the ALJ to reconsider Dr. Alpern’s 13 opinion concerning the epidurals. 14 Alpern believed that Plaintiff would be absent on the high or low 15 end of “a week . . . maybe less” and reevaluate Plaintiff’s RFC 16 in light of that determination. 17 assessment that Plaintiff would be absent for some specific 18 length of time after each epidural procedure, she must provide a 19 clear and convincing reason for that finding. 20 appropriate. 21 (9th Cir. 2014). 22 VI. 23 24 She may clarify whether Dr. If she again rejects his Thus, remand is See Garrison v. Colvin, 759 F.3d 995, 1020 n.26 CONCLUSION Consistent with the foregoing and under sentence four of 42 U.S.C. § 405(g),5 IT IS ORDERED that judgment be entered 25 26 27 28 5 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 12 1 REVERSING the Commissioner’s decision, GRANTING Plaintiff’s 2 request for remand, and REMANDING this action for further 3 proceedings consistent with this memorandum decision. 4 5 6 DATED: May 22, 2018 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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