Laray Johnson v. Nancy A. Berryhill, No. 2:2017cv06805 - Document 19 (C.D. Cal. 2018)
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. (See document for further details). (mr)
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Laray Johnson v. Nancy A. Berryhill Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LARAY JOHNSON, Plaintiff, 12 13 14 15 Case No. CV 17-6805 SS v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 21 22 23 24 25 26 27 Plaintiff Laray Johnson (“Plaintiff”) brings this action seeking to reverse or, in the alternative, to remand the decision of the Commissioner of the Social Security Administration (the “Commissioner” or the “Agency”) denying his application for social security benefits. 636(c), to the The parties consented, pursuant to 28 U.S.C. § jurisdiction Magistrate Judge. of the undersigned (Dkt. Nos. 11-13). United States For the reasons stated 28 Dockets.Justia.com 1 below, the decision of the Agency is REVERSED and REMANDED for 2 further administrative proceedings. 3 4 II. 5 PROCEDURAL HISTORY 6 7 On November 27, 2013, Plaintiff filed an application for 8 disability benefits claiming that he became disabled on July 2, 9 2012. (“Certified Administrative Record (‘AR’),” Dkt. No. 16 at 10 175-83). The Agency denied his application on March 7, 2014. (AR 11 95-6). 12 Administrative Law Judge (“ALJ”) Joel B. Martinez on February 1, 13 2016. 14 (AR 42-69). 15 at the hearing. Plaintiff then requested a hearing, which was held before (AR 40-74). Plaintiff appeared with counsel and testified. Alan E. Cummings, a vocational expert, also testified (AR 69-72). 16 17 On March 21, 2016, the ALJ issued a decision denying benefits. 18 (AR 19-36). Plaintiff sought review before the Appeals Council, 19 which denied his request on July 25, 2017. 20 filed the instant action on September 15, 2017. 21 No. 1). (AR 1-6). Plaintiff (“Complaint,” Dkt. 22 23 III. 24 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 25 26 27 To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment 28 2 1 that prevents her from engaging in substantial gainful activity1 2 and that is expected to result in death or to last for a continuous 3 period of at least twelve months. 4 721 5 impairment must render the claimant incapable of performing the 6 work she previously performed and any other substantial gainful 7 employment that exists in the national economy. 8 180 9 § 423(d)(2)(A)). (9th F.3d Cir. 1998) 1094, (citing 1098 (9th 42 Reddick v. Chater, 157 F.3d 715, U.S.C. Cir. § 423(d)(1)(A)). 1999) The Tackett v. Apfel, (citing 42 U.S.C. 10 11 12 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 13 14 (1) Is the claimant presently engaged in substantial 15 gainful activity? 16 disabled. 17 (2) If so, the claimant is found not If not, proceed to step-two. Is the claimant’s impairment severe? 18 claimant is found not disabled. 19 If not, the step-three. 20 (3) If so, proceed to Does the claimant’s impairment meet or equal the 21 requirements of any impairments listed in 20 C.F.R. 22 Part 404, Subpart P, Appendix 1? 23 claimant is found disabled. 24 step-four. 25 If so, the If not, proceed to \\ 26 27 28 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. § 416.910. 3 1 (4) Is the claimant capable of performing his past 2 work? If so, the claimant is found not disabled. 3 If not, proceed to step-five. 4 (5) Is the claimant able to do any other work? If not, 5 the claimant is found disabled. If so, the claimant 6 is found not disabled. 7 8 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 9 262 F.3d 949, 953-54 (9th Cir. 2001) (citation omitted); 20 C.F.R. 10 § 416.920(b)-(g)(1). 11 The claimant has the burden of proof at steps-one through 12 - 13 four and the Commissioner has the burden of proof at step-five. 14 Bustamante, 262 F.3d at 953-54. 15 meets her burden of establishing an inability to perform the past 16 work, the Commissioner must show that the claimant can perform some 17 other work that exists in “significant numbers” in the national 18 economy, taking into account the claimant’s residual functional 19 capacity (“RFC”),2 age, education, and work experience. 20 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). 21 do so by the testimony of a vocational expert or by reference to 22 the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, 23 Subpart P, Appendix 2 (commonly known as “the Grids”). 24 v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 25 has both exertional If, at step-four, the claimant (strength-related) Tackett, The Commissioner may and Osenbrock When a claimant nonexertional 26 27 28 Residual functional capacity is “the most [one] can still do despite [his] limitations” and represents an assessment “based on all the relevant evidence.” 20 C.F.R. § 416.945(a). 2 4 1 limitations, the Grids are inapplicable and the ALJ must take the 2 testimony of a vocational expert. 3 869 (9th Cir. 2000). Moore v. Apfel, 216 F.3d 864, 4 5 IV. 6 THE ALJ’S DECISION 7 8 The ALJ employed the five-step sequential evaluation process. 9 At step-one, the ALJ found that Plaintiff has not engaged in 10 substantial gainful activity since his alleged onset date. 11 24). 12 shoulder sprain/strain with ultrasound findings, degenerative disc 13 disease of the cervical spine, kidney disease, and obesity are 14 severe impairments. 15 does not have an impairment or combination of impairments that 16 meets or medically equals the severity of one of the listed 17 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. 18 At step-four, the ALJ found that Plaintiff is unable to perform 19 any past relevant work. 20 despite Plaintiff’s severe impairments, he retains the RFC to 21 perform light work, which is defined in 20 C.F.R. § 404.1567(b) 22 and § 416.967(b) as: At step-two, the ALJ found (AR 24-27). that Plaintiff’s bilateral At step-three, the ALJ found that (AR 30). (AR 27). However, the ALJ determined that 23 24 [L]ifting and/or carrying up to 20 pounds occasionally 25 and 10 pounds frequently, standing and/or walking up to 26 six hours in an eight-hour workday, and sitting up to 27 six hours in an eight-hour workday. 28 occasionally perform (AR postural 5 The claimant can activities, with no 1 overhead work. The claimant requires a cane for 2 prolonged ambulation, and he can occasionally perform 3 forceful pushing and pulling with the upper extremities. 4 The claimant can perform simple to moderately complex 5 work. 6 7 (AR 27-28). 8 jobs that exist in significant numbers in the national economy, 9 such as a bench inspector. 10 At step-five, the ALJ found that Plaintiff can perform (AR 30-31). that Plaintiff was not disabled. Accordingly, the ALJ found (AR 31). 11 12 V. 13 STANDARD OF REVIEW 14 15 Under 42 U.S.C. § 405(g), a district court may review the 16 Commissioner’s decision to deny benefits. “[The] court may set 17 aside the Commissioner’s denial of benefits when the ALJ’s findings 18 are based on legal error or are not supported by substantial 19 evidence in the record as a whole.” 20 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 21 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 22 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 23 24 “Substantial evidence is more than a scintilla, but less than 25 a preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. 26 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 27 evidence which a reasonable person might accept as adequate to 28 support a conclusion.” (Id.). It is “relevant To determine whether substantial 6 1 evidence supports a finding, the court must “‘consider the record 2 as a whole, weighing both evidence that supports and evidence that 3 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 4 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 5 1993)). 6 or reversing that conclusion, the court may not substitute its 7 judgment for that of the Commissioner. 8 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 9 1457 (9th Cir. 1995)). If the evidence can reasonably support either affirming Reddick, 157 F.3d at 720- 10 11 VI. 12 DISCUSSION 13 14 A. Plaintiff’s Claims 15 Plaintiff asserts two claims. 16 evaluation of Daniel J. First, Plaintiff disputes the 17 ALJ’s Paveloff’s, M.D., opinion. 18 (“Plaintiff’s Memo,” Dkt. No. 17 at 3-6). 19 argues that despite stating that he gave great weight to Dr. 20 Paveloff’s opinion, the ALJ failed to include in the RFC the lifting 21 limitation and the likely absenteeism found by Dr. Paveloff. 22 AR 29, 930-32). Plaintiff specifically (Id., 23 Second, Plaintiff contends the ALJ failed to articulate clear 24 25 and convincing reasons for rejecting Plaintiff’s testimony. 26 (Plaintiff’s Memo at 6-8). 27 ALJ committed reversible error in evaluating Dr. Paveloff’s However, because the Court finds the 28 7 1 opinion, it is unnecessary for the Court to address Plaintiff’s 2 second claim. 3 4 B. The Medical Opinion Evaluation 5 6 “‘In disability benefits cases . . . physicians may render 7 medical, clinical opinions, or they may render opinions on the 8 ultimate issue of disability – the [plaintiff’s] ability to work.’” 9 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting “Specifically, we "distinguish among 10 Reddick, 157 F.3d at 725). 11 the opinions of three types of physicians: (1) those who treat the 12 claimant (treating physicians); (2) those who examine but do not 13 treat 14 neither examine nor treat the claimant (nonexamining physicians)." 15 Id. (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). the claimant (examining physicians); and (3) those who 16 17 Generally, the treating physician’s medical opinion is given 18 “‘controlling weight’ so long as it ‘is well-supported by medically 19 acceptable clinical and laboratory diagnostic techniques and is 20 not 21 claimant’s] case record.’” 22 675 23 Regardless 24 contradicted by another’s opinion or not, “‘an ALJ may only reject 25 it by providing specific and legitimate reasons that are supported 26 by 27 F.3d 648, 654 (9th Cir. 2017) (quoting Bayliss v. Barnhart, 427 28 F.3d 1211, 1216 (9th Cir. 2005)). inconsistent (9th Cir. as with 2017) to substantial the other evidence in [the Trevizo v. Berryhill, 871 F.3d 664, (quoting whether substantial a 20 C.F.R. treating evidence.’” Revels 8 § 404.1527(c)(2)). physician’s v. opinion Berryhill, is 874 1 During the evaluation, the ALJ is not required to comment on 2 every piece of medical evidence. 3 1006, 1012 (9th Cir. 2003). 4 signficant 5 physician’s opinion, the ALJ must provide specific and legitimate 6 reasons for doing so. 7 739 F.2d 1393, 1394-95 (9th Cir. 1984) (“The Secretary, however, 8 need not discuss all evidence presented to her. 9 explain why ‘significant probative evidence has been rejected.’”) 10 and probative Howard v. Barnhart, 341 F.3d However, evidence, if the contained in ALJ rejects the treating Vincent on Behalf of Vincent v. Heckler, Rather, she must (quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981)). 11 12 13 C. The ALJ Failed To Properly Evaluate Dr. Paveloff’s Medical Opinion 14 15 Despite stating he gave great weight to Dr. Paveloff’s medical 16 opinion, the ALJ failed to include or address two of Dr. Paveloff’s 17 limitations within the ALJ’s RFC assessment. 18 19 20 1. The ALJ Failed To Include Dr. Paveloff’s Lifting Limitation In The RFC 21 22 After evaluating the medical opinions of Plaintiff’s treating 23 physicians, the ALJ determined in his RFC assessment that Plaintiff 24 has the “capacity to perform light work, which is defined . . . as 25 lifting and/or carrying up to 20 pounds occasionally and 10 pounds 26 frequently . . . .” 27 stated that Plaintiff could lift and/or carry up to 20 pounds 28 occasionally and less than 10 pounds frequently. (AR 27). Dr. Paveloff’s opinion, however, 9 (AR 930)(emphasis 1 added). 2 3 The ALJ failed to provide a specific and legitimate reason 4 for rejecting Dr. Paveloff’s opinion 5 limitation. While the ALJ included a different lifting restriction 6 in his decision, he failed to provide any reason for rejecting the 7 treating physician’s limitation on lifting, a more restrictive 8 limitation. This failure requires remand. regarding a lifting 9 2. The ALJ Failed To Address Plaintiff’s Absenteeism 10 11 12 After assessing Dr. Paveloff’s medical opinion and giving it 13 great weight, the ALJ failed to address Plaintiff’s potential to 14 miss work more than three days a month. 15 previously, 16 evidence, but he must explain his actions if he rejects significant 17 probative evidence. 18 at 1395. an ALJ need not discuss (AR 932). every As discussed piece of medical Howard, 341 F.3d at 1012, Vincent, 739 F.2d 19 If an individual will experience multiple absences during a 20 21 single month, that individual may be found disabled. 22 Berryhill, 856 F.3d 659, 644-65 (9th Cir. 2017) (“if a person . . 23 . were to miss two or more days of work per month, . . . [he] would 24 be unemployable.”); see also Brews v. Astrue, 682 F.3d 1157, 1164 25 (9th 26 employment); Lusardi v. Astrue, 350 Fed. App’x 169, 171 (9th Cir. 27 2009) (VE testified that absenteeism at rate of 3 times per month 28 is critical to determination of job availability). Cir. 2012) (absenteeism of 10 2 days per month Decker v. precludes However, the 1 ALJ never addressed the treating doctor’s opinion that Plaintiff 2 would miss three days of work per month. 3 4 With no explanation or acknowledgment as to why the ALJ did take into account Plaintiff’s 5 not 6 absenteeism as identified in Dr. Paveloff’s medical opinion, remand 7 is required. 8 limitation and VII. 9 lifting CONCLUSION 10 11 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 12 the decision of the Commissioner and REMANDING this matter for 13 further proceedings consistent with this decision. 14 ORDERED that the Clerk of the Court serve copies of this Order and 15 the Judgment on counsel for both parties. IT IS FURTHER 16 17 DATED: July 25, 2018 18 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 19 20 21 22 THIS OPINION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS OR ANY OTHER LEGAL DATABASE. 23 24 25 26 27 28 11
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