Seda Hovhannisyan v. Nancy A. Berryhill, No. 2:2017cv02743 - Document 21 (C.D. Cal. 2017)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. (mz)
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Seda Hovhannisyan v. Nancy A. Berryhill Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SEDA HOVHANNISYAN, Plaintiff, 12 13 14 15 CASE NO. CV 17-2743 SS v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 21 Seda Hovhannisyan (“Plaintiff”) seeks review of the final 22 decision of the Acting Commissioner of Social Security (the 23 “Commissioner” or “Agency”) denying her application for social 24 security benefits. 25 § 636(c), to the jurisdiction of the undersigned United States 26 Magistrate Judge. 27 below, the decision of the Commissioner is REVERSED and this case The parties consented, pursuant to 28 U.S.C. (Dkt. Nos. 10, 12, 13). For the reasons stated 28 Dockets.Justia.com 1 is REMANDED for further administrative proceedings consistent with 2 this decision. 3 4 II. 5 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 6 7 To qualify for disability benefits, a claimant must 8 demonstrate a medically determinable physical or mental impairment 9 that prevents the claimant from engaging in substantial gainful 10 activity and that is expected to result in death or to last for a 11 continuous period of at least twelve months. 12 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 13 The impairment must render the claimant incapable of performing 14 work 15 employment that exists in the national economy. 16 180 17 § 423(d)(2)(A)). previously F.3d performed 1094, 1098 or (9th any Cir. other 1999) Reddick v. Chater, substantial gainful Tackett v. Apfel, (citing 42 U.S.C. 18 19 To decide if a claimant is entitled to benefits, an ALJ 20 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. 21 The steps are: 22 23 (1) Is the claimant presently engaged in substantial gainful 24 activity? 25 not, proceed to step two. 26 (2) Is the If so, the claimant is found not disabled. claimant’s impairment 27 claimant is found not disabled. 28 three. 2 severe? If not, If the If so, proceed to step 1 (3) Does the claimant’s impairment meet or equal one of the 2 specific impairments described in 20 C.F.R. Part 404, 3 Subpart P, Appendix 1? 4 disabled. 5 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 6 so, the claimant is found not disabled. 7 to step five. 8 (5) 9 Is the claimant able to do any other work? claimant is found disabled. 10 If not, proceed If not, the If so, the claimant is found not disabled. 11 12 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 13 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 14 (g)(1), 416.920(b)-(g)(1). 15 The claimant has the burden of proof at steps one through four 16 17 and the 18 Bustamante, 262 F.3d at 953-54. 19 affirmative duty to assist the claimant in developing the record 20 at every step of the inquiry. 21 claimant meets his or her burden of establishing an inability to 22 perform past work, the Commissioner must show that the claimant 23 can perform some other work that exists in “significant numbers” 24 in 25 residual functional capacity (“RFC”), age, education, and work 26 experience. 27 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 28 may do so by the testimony of a VE or by reference to the Medical- the Commissioner national has economy, the burden of at step five. Additionally, the ALJ has an Id. at 954. taking proof into If, at step four, the account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 3 The Commissioner 1 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 2 Appendix 2 (commonly known as “the grids”). 3 240 F.3d 1157, 1162 (9th Cir. 2001). 4 exertional (strength-related) and non-exertional limitations, the 5 Grids are inapplicable and the ALJ must take the testimony of a 6 vocational expert (“VE”). 7 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 8 1988)). Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th 9 10 III. 11 THE ALJ’S DECISION 12 13 The ALJ employed the five-step sequential evaluation process 14 in evaluating Plaintiff’s case. 15 Plaintiff has not engaged in substantial gainful activity since 16 January 30, 2013, the application date. 17 the 18 degenerative changes in the lumbar and thoracic spine, pituitary 19 macroadenoma, status post removal surgery and obesity are severe 20 impairments. 21 Plaintiff does not have an impairment or combination of impairments 22 that meet or medically equal the severity of any of the listings 23 enumerated in the regulations. (AR 21-22). ALJ found that (AR 20). At step one, the ALJ found that Plaintiff’s (AR 20). headaches, At step two, hypertension, At step three, the ALJ determined that 24 25 The ALJ then assessed Plaintiff’s RFC and concluded that she 26 can perform a full range of medium work, as defined in 20 C.F.R. 27 28 4 1 § 416.967(c).1 (AR 22). At step four, the ALJ found that Plaintiff 2 was 3 Utilizing the grids and considering Plaintiff’s age, education, 4 work experience and RFC, the ALJ determined at step five that there 5 are jobs that exist in significant numbers in the national economy 6 that Plaintiff can perform. 7 that Plaintiff was not under a disability as defined by the Social 8 Security Act since January 30, 2013, the date the application was 9 filed. unable to perform any past relevant (AR 27). work. (AR 26-27). Accordingly, the ALJ found (AR 27-28). 10 11 IV. 12 STANDARD OF REVIEW 13 14 Under 42 U.S.C. § 405(g), a district court may review the 15 Commissioner’s decision to deny benefits. “[The] court may set 16 aside the Commissioner’s denial of benefits when the ALJ’s findings 17 are based on legal error or are not supported by substantial 18 evidence in the record as a whole.” 19 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 20 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 21 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 22 “Substantial evidence is more than a scintilla, but less than 23 24 a preponderance.” 25 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 26 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.” 20 C.F.R. § 416.967(c). 27 28 Reddick, 157 F.3d at 720 (citing Jamerson v. 1 5 It is “relevant 1 evidence which a reasonable person might accept as adequate to 2 support a conclusion.” 3 evidence supports a finding, the court must “ ‘consider the record 4 as a whole, weighing both evidence that supports and evidence that 5 detracts from the [Commissioner’s] conclusion.’ ” 6 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 7 1993)). 8 or reversing that conclusion, the court may not substitute its 9 judgment for that of the Commissioner. (Id.). To determine whether substantial Aukland, 257 If the evidence can reasonably support either affirming Reddick, 157 F.3d at 720- 10 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 11 1457 (9th Cir. 1995)). 12 13 V. 14 DISCUSSION 15 16 17 A. The ALJ Failed To Properly Weigh The Treating Physician’s Opinion 18 19 An ALJ must afford the greatest weight to the opinion of the 20 claimant’s treating physician. The opinions of treating physicians 21 are entitled to special weight because the treating physician is 22 hired to cure and has a better opportunity to know and observe the 23 claimant as an individual. 24 (9th Cir. 2003); Thomas v. Barnhart, 278 F.3d 947, 956–57 (9th Cir. 25 2002); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 26 Where the treating doctor’s opinion is not contradicted by another 27 doctor, it may be rejected only for “clear and convincing” reasons. 28 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). Connett v. Barnhart, 340 F.3d 871, 874 6 1 Even if the treating physician’s opinion is contradicted by another 2 doctor, the ALJ may not reject this opinion without providing 3 specific, legitimate reasons, supported by substantial evidence in 4 the record. 5 (9th Cir. 2007); Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 6 (9th Cir. 2008). 7 ‘controlling weight’ because it is not ‘well-supported’ or because 8 it is inconsistent with other substantial evidence in the record,” 9 the ALJ shall consider “specified factors in determining the weight 10 it will be given[, including] . . . the length of the treatment 11 relationship and the frequency of examination by the treating 12 physician[ ] 13 relationship between the patient and the treating physician.” 14 495 F.3d at 631 (citation omitted); see 20 C.F.R. §§ 404.1527(d)(2) 15 (listing factors to consider), 416.927(d)(2) (same). Id. at 830–31; see Orn v. Astrue, 495 F.3d 625, 632 “If a treating physician’s opinion is not given and the nature and extent of the treatment Orn, 16 17 On June 10, 2015, Vagharshak M. Pillosyan, M.D., Plaintiff’s 18 treating physician, completed a physical RFC questionnaire. (AR 19 307-10). 20 carrying 21 occasionally, walking and standing less than two hours in an eight- 22 hour workday with occasional use of a walker, and sitting less than 23 one hour in an eight-hour day. 24 opined that Plaintiff can occasionally balance but never perform 25 other postural activities, occasionally reach, handle and finger 26 because of numbness of the fingers bilaterally, and is visually 27 limited due to loss of half the right visual field. (AR 309). 28 Finally, Dr. Pillosyan opined that Plaintiff has an inability to He opined that Plaintiff was limited to lifting or less than ten pounds frequently (AR 308). 7 and ten pounds Dr. Pillosyan further 1 tolerate noise, dust, vibration, extreme humidity and dryness, 2 odors, claustrophobia and heights. (AR 309). 3 4 The ALJ gave Dr. Pillosyan’s opinion “little weight,” finding 5 it “unsupported by and inconsistent with [Plaintiff’s] objective 6 medical findings and her testimony.” 7 rejected Dr. Pillosyan’s opinion because “he did not make such 8 limited 9 application for disability benefits and approaching hearing date findings until June 2015, 10 prompted his opinion.” (AR 26). 11 (AR 26). suggesting The ALJ also [Plaintiff’s] The ALJ’s analysis is not supported by substantial evidence. 12 First, the ALJ’s discussion of the treating doctor's opinions 13 14 fails to provide sufficient analysis. 15 sufficiently specific reasoning to allow a reviewing court to 16 conclude that the ALJ rejected the treating physician’s opinion 17 for 18 Furthermore, the ALJ does not explain how Dr. Pillosyan's opinion 19 is inconsistent with Plaintiff's testimony. legitimate reasons supported The ALJ's analysis lacks by substantial evidence. 20 21 Second, the ALJ's discussion of the medical evidence overlooks The ALJ contends that Dr. Pillosyan’s records 22 important points. 23 do not show any limitation in reaching and fingering. 24 To the contrary, on January 3, 2014, Dr. Pillosyan found Plaintiff 25 positive 26 positive for painful shoulders, elbows, wrists, hands and fingers. 27 (AR 28 examinations in January, February and May 2014 and into 2015. for 299-300). numbness These of the extremities findings 8 persisted mainly (AR 26). distally during and subsequent (AR 1 297, 298, 295, 291, 292, 288, 289). The ALJ also asserts that Dr. 2 Pillosyan’s records do not indicate any visual limitations. 3 26). 4 ptosis and cataract of right eye. 5 Dr. Pillosyan confirmed decreased vision in Plaintiff’s right eye. 6 (AR 297). 7 an inability to see the upper outer quadrate of the right visual 8 field, which continued into 2015. 9 January 21, 2015, Dr. Pillosyan diagnosed progressive right eye (AR However, on January 3, 2014, Dr. Pillosyan diagnosed mild (AR 300). On January 6, 2014, On May 28, 2014, Plaintiff reported blurry vision and (AR 290). (AR 291, 289, 286, 283). On 10 blindness. On May 8, 2015, Dr. Pillosyan found right 11 sided visual field defect, laterally. 12 contradict the statement regarding a lack of visual limitations. (AR 281). These findings 13 14 Further, Dr. Pillosyan performed multiple examinations that 15 supported the physical limitations described in his June 2015 16 opinion. 17 muscle pain and stiffness, limited range of motion in her shoulders 18 and neck and limited strength in all extremities. 19 In May 2014, Plaintiff reported severe, excruciating back and 20 shoulder pain with reduced range of motion. 21 and March 2015, Plaintiff used a cane to ambulate and reported an 22 unstable 23 examination, Dr. Pillosyan found mild kyphosis, moderate to severe 24 tenderness to palpation of spinous processes, muscle spasms in the 25 upper back, decreased strength in lower extremities, weakness in 26 upper extremities, tenderness to palpation and reduced range of 27 motion of the right shoulder, tenderness and selling of the right 28 AC joint, increased pain upon supination of the right forearm, In January and February 2014, Plaintiff had joint and gait with occasional falls. 9 (AR 294-300). (AR 291). (AR 286, In January 289). On 1 severe tenderness of the lumbar/sacral region with muscular spasm 2 and significant reduced range of motion, and an unstable gait with 3 the fear of falling secondary to pain and weakness of the lower 4 extremities. 5 edema of both legs with palpitations. 6 Dr. Pillosyan found a mildly stiff neck, edema and tenderness of 7 both legs, decreased muscle strength, unstable gait, decreased 8 sensation to pain and touch on a distribution of the L4-L5 nerve 9 and over the posterolateral aspect of the right leg, and kyphosis 10 (AR 286-87, 289-90). of the thoracic spine. In May 2015, Plaintiff reported (AR 280). On examination, (AR 281). 11 Third, the ALJ erred in rejecting Dr. Pillosyan’s opinion in 12 13 favor of the nontreating, State Agency physicians’ opinions. 14 ALJ must give specific and legitimate reasons for rejecting a 15 treating physician’s opinion in favor of a nontreating physician’s 16 contradictory opinion. 17 830-31. 18 capable 19 twenty-five pounds frequently; standing, walking and sitting six 20 hours in an eight-hour workday; and performing postural activities 21 frequently. 22 to 23 consistent with and supported by the substantial medical evidence 24 of record and [Plaintiff’s] activities of daily living.” 25 The ALJ does not, however, identify what “substantial medical 26 evidence of record” or “activities of daily living” indicate that 27 Plaintiff is capable of medium work. 28 physicians submitted their opinions in June and December 2013 and the The Orn, 495 F.3d at 632; Lester, 81 F.3d at The State Agency physicians opined that Plaintiff was of lifting or carrying (AR 59-68, 70-79). State Agency fifty pounds occasionally and The ALJ gave “considerable weight” determinations 10 because “they are overall (AR 26). Further, the State Agency 1 did not have the opportunity to review substantial medical evidence 2 submitted after those dates. 3 opportunity to review Dr. Pillosyan’s medical records, including 4 his examinations, but they also were unaware that Plaintiff was 5 diagnosed with a pituitary tumor in January 2014 and that June 2014 6 and June 2015 x-rays indicated chronic, degenerative changes along 7 the lumbar, thoracic and cervical spine. 8 14). Not only did they not have the (AR 247-58, 269-79, 311- 9 10 Finally, the ALJ’s contention that Dr. Pillosyan’s opinion 11 was prompted by Plaintiff’s disability application (AR 26) is 12 legally insufficient. 13 Cir. 1996), as amended (Aug. 12, 1996), the Ninth Circuit ruled 14 that the ALJ could reject a physician’s statement where “it was 15 obtained solely for the purposes of the administrative hearing, 16 varied from [that physician’s] own treatment notes, and was worded 17 ambiguously.” 18 ambiguous 19 treatment notes. In Saelee v. Chater, 94 F.3d 520, 522 (9th Here, however, Dr. Pillosyan’s opinion was not and, as discussed above, was consistent with his 20 21 In sum, the ALJ did not provide specific and legitimate 22 reasons for rejecting Dr. Pillosyan’s opinion. 23 shall 24 appropriate reasons for not giving the opinion controlling weight, 25 the ALJ may not reject the opinion without providing specific and 26 legitimate reasons supported by substantial evidence in the record. reevaluate Dr. Pillosyan’s 27 28 11 opinion. On remand, the ALJ If the ALJ finds 1 B. The ALJ’s Use Of The Grids Was Improper 2 3 The ALJ relied on the medical vocational grids to determine 4 that there were jobs in the national economy that Plaintiff is 5 capable of performing. 6 impairment that limits his or her ability to work without directly 7 affecting his or her strength, the claimant is said to have 8 nonexertional 9 covered by the grids.” (not (AR 27). However, “[i]f a claimant has an strength-related) limitations Penny, 2 F.3d at 958. that are not Thus, “the grids 10 are inapplicable when a claimant’s non-exertional limitations are 11 sufficiently severe so as to significantly limit the range of work 12 permitted by the claimant’s exertional limitations.” 13 Astrue, 14 alterations omitted). 499 F.3d 1071, 1075 (9th Cir. 2007) Hoopai v. (citation and 15 16 Here, Plaintiff’s nonexertional limitations are sufficiently 17 severe such that they limit her abilities in ways not contemplated 18 by the grids. 19 nonexertional impairments (pain and reduced vision) that precluded 20 the ALJ’s sole reliance on the grids. 21 02 (ruling that significant nonexertional impairments, such as poor 22 vision, pain and inability to tolerate dust or gases, may make 23 reliance on the grids inappropriate). 24 accurately and completely represent Plaintiff’s limitations, the 25 ALJ improperly relied on them when he determined that Plaintiff 26 was 27 process. 28 limitations, including pain and poor vision, to make the grids “not As discussed above, the record reveals sufficient disabled” at step-five of Tackett, 180 F.3d at 1101– Because the grids do not the sequential evaluation Plaintiff suffers from sufficiently severe nonexertional 12 1 inapplicable to the present case. Therefore, on remand, the ALJ 2 must hear testimony from a vocational expert to determine whether 3 Plaintiff is disabled under the Social Security Act.2 4 5 VI. 6 CONCLUSION 7 8 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 9 the decision of the Commissioner and REMANDING this matter for 10 further proceedings consistent with this decision. IT IS FURTHER 11 ORDERED that the Clerk of the Court serve copies of this Order and 12 the Judgment on counsel for both parties. 13 14 DATED: December 27, 2017 15 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 21 22 23 24 25 2 26 27 28 Plaintiff also argues that the ALJ failed to consider her headaches and obesity on her ability to work and erred in rejecting her subjective symptoms. (Dkt. No. 19 at 9-16). However, it is unnecessary to reach Plaintiff’s arguments on these grounds, as the matter is remanded for the alternative reasons discussed at length in this Order. 13
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