Alfreda Jones v. Nancy A. Berryhill, No. 2:2017cv07404 - Document 23 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER REVERSING AND REMANDING DECISION OF COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. IT IS ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this opinion. (See document for further details.) (sbou)
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Alfreda Jones v. Nancy A. Berryhill Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 Case No. CV 17-07404-AFM ALFREDA JONES, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, MEMORANDUM OPINION AND ORDER REVERSING AND REMANDING DECISION OF COMMISSIONER Defendant. 16 17 18 Plaintiff filed this action seeking review of the Commissioner’s final decision 19 denying her application supplemental security income. In accordance with the 20 Court’s case management order, the parties have filed memorandum briefs 21 addressing the merits of the disputed issue. This matter now is ready for decision. 22 BACKGROUND 23 In July 2014, Plaintiff filed an application for Supplemental Security Income, 24 alleging disability beginning January 1, 2011. (Administrative Record (“AR”) 143- 25 151.) After her application was denied (AR 77-81), a hearing was held before an 26 Administrative Law Judge (“ALJ”) on September 6, 2016. Both Plaintiff, who was 27 represented by an attorney, and a vocational expert (“VE”) testified at the hearing. 28 (AR 46-60.) Dockets.Justia.com 1 On October 14, 2016, the ALJ issued a decision finding that Plaintiff suffered 2 from the following severe impairments: degenerative disc disease of the lumbar spine 3 with sciatica and mood disorder. (AR 30.) The ALJ determined that Plaintiff retained 4 the residual functional capacity (“RFC”) to perform medium work limited to simple, 5 routine tasks that do not involve interaction with the general public. (AR 32.) 6 Adopting the opinion of the VE, the ALJ concluded that given her RFC, Plaintiff 7 could perform the work of kitchen helper, hospital cleaner, and warehouse worker. 8 (AR 38.) Accordingly, the ALJ found Plaintiff was not disabled at any time from 9 January 1, 2011 through the date of the ALJ’s decision. (AR 30.) On August 18, 10 2017, the Appeals Council denied review, rendering the ALJ’s decision the final 11 decision of the Commissioner. (AR 1-7.) 12 DISPUTED ISSUE 13 Whether the ALJ properly evaluated the opinion of Dr. Caruso-Radin. 14 STANDARD OF REVIEW 15 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 16 determine whether the Commissioner’s findings are supported by substantial 17 evidence and whether the proper legal standards were applied. See Treichler v. 18 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 19 evidence means “more than a mere scintilla” but less than a preponderance. See 20 Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is “such 21 relevant evidence as a reasonable mind might accept as adequate to support a 22 conclusion.” Richardson, 402 U.S. at 401. The Court reviews the record as a whole, 23 weighing both the evidence that supports and the evidence that detracts from the 24 Commissioner’s conclusion. See Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 25 2014). Where evidence is susceptible of more than one rational interpretation, the 26 Commissioner’s decision must be upheld. See Garrison, 759 F.3d at 1010; Ryan v. 27 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Orn v. Astrue, 495 F.3d 28 2 1 625, 630 (9th Cir. 2007). Finally, even when an ALJ’s decision contains error, it must 2 be affirmed if the error was harmless. Treichler, 775 F.3d at 1099. DISCUSSION 3 4 1. Dr. Caruso-Radin’s opinion. 5 Non-examining State agency psychologist, Phedra Caruso-Radin, Psy.D., 6 reviewed Plaintiff’s mental health records and provided a Mental Residual 7 Functional Capacity Assessment. According to Dr. Caruso-Radin, Plaintiff is not 8 significantly limited in her “ability to understand and remember very short and simple 9 instructions” but is moderately limited in her “ability to understand and remember 10 detailed instructions.” (AR 71.) Dr. Caruso-Radin explained that Plaintiff “is able to 11 understand, remember, and carry out a two-step command involving simple 12 instructions.” (AR 71-72.) Regarding Plaintiff’s sustained concentration and 13 persistence limitations, Dr. Caruso-Radin opined that Plaintiff was not significantly 14 limited in her ability to “carry out very short and simple instructions,” but moderately 15 limited in her ability to maintain attention and concentration for “extended periods.” 16 (AR 72.) In her narrative explanation, Dr. Caruso-Radin reiterated that Plaintiff “can 17 understand, remember, and carry out a two-step command involving simple 18 instructions and maintain CPP [concentration, persistence, and pace] for such.” (AR 19 72.) In the space marked “Additional Explanation” for mental RFC, Dr. Caruso- 20 Radin wrote “Please see FOFA [Findings of Fact and Analysis of Evidence] for full 21 explanation.” (AR 73.) In the FOFA, Dr. Caruso-Radin opined that Plaintiff “can 22 complete simple tasks with npc (no public contact).” (AR 67-68.) 23 2. The ALJ gave great weight to Dr. Caruso-Radin’s opinion. 24 The ALJ noted that Dr. Caruso-Radin’s opinion indicated that Plaintiff was 25 capable of understanding, remembering, and carrying out a two-step command 26 involving simple instructions and that Plaintiff was capable of maintaining adequate 27 concentration, persistence and pace for such. The ALJ also noted Dr. Caruso-Radin’s 28 opinion indicated that Plaintiff “would do best in a non-public environment.” (AR 36 3 1 [citing AR 72-73].) The ALJ found Dr. Caruso-Radin’s opinion to be consistent with 2 treatment notes indicating that Plaintiff’s mental status and cognitive function did not 3 appear to be impaired as well as evidence indicating that Plaintiff had difficulty 4 getting along with others. (AR 36-37.) The ALJ stated that he gave great weight to 5 Dr. Caruso-Radin’s opinion. (AR 36.) 6 The ALJ determined that Plaintiff could perform jobs involving no more than 7 simple, routine tasks that do not involve interaction with the general public. (AR 32, 8 36-37.) Relying upon the foregoing mental RFC and the VE’s testimony, the ALJ 9 determined that Plaintiff could perform the jobs of kitchen helper (DOT 318.687- 10 010), hospital cleaner (DOT 323.687-010), and warehouse worker (DOT 922.687- 11 058). (AR 38.) 12 3. The ALJ erred by failing to address Dr. Caruso-Radin’s opinion that 13 Plaintiff was limited to following two-step commands. 14 Plaintiff argues that the ALJ committed error when he assessed her mental 15 RFC as limited to “simple, routine tasks” because he failed to either incorporate or 16 reject Dr. Caruso-Radin’s opinion that Plaintiff could understand, remember, and 17 carry out two-step commands. (ECF No. 20 at 5-6). Plaintiff’s argument relies, in 18 part, upon Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996 (9th Cir. 2015). 19 In Rounds, the Ninth Circuit made a critical distinction between a limitation to 20 “simple routine and repetitive tasks” and a limitation to “one- or two-step 21 instructions.” Rounds, 807 F.3d at 1003-1004; see Wilson v. Berryhill, 2018 WL 22 1425963, at *34-35 (E.D. Cal. Mar. 22, 2018). The distinction is important because 23 while an RFC to performing simple, routine tasks is consistent with Level 2 24 reasoning,1 an RFC to one- to two-step tasks is not. See Rounds, 807 F.3d at 1003- 25 1004 & n.6 (holding there is an apparent conflict between RFC limiting claimant to 26 Level 2 reasoning is defined as the ability to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variable in or from standardized situations.” See Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015) (quoting DOT, App. C, 1991 WL 688702). 1 27 28 4 1 one- and two-step tasks and the demands of Level 2 reasoning; also noting that 2 unpublished decisions of Ninth Circuit have concluded that an RFC limitation to 3 “simple” or “repetitive” tasks is consistent with Level 1 reasoning); Grigsby v. 4 Astrue, 2010 WL 309013, at *2 (C.D. Cal. Jan. 22, 2010) (“Level 2 reasoning jobs 5 may be simple, but they are not limited to one- or two-step instructions. The 6 restriction to jobs involving no more than two-step instructions is what distinguishes 7 Level 1 reasoning from Level 2 reasoning.”); see also, Banales v. Berryhill, 2017 8 WL 651941, at *2 (C.D. Cal. Feb. 16, 2017) (“Although a limitation to simple 9 repetitive tasks may be consistent with Reasoning Level Two, a limitation to two- 10 step instructions may not be consistent with Reasoning Level Two.”) (citation 11 omitted). 12 Following Rounds, district courts in this Circuit have found reversible error in 13 cases essentially identical to this one. In Banales, for example, the ALJ 14 acknowledged a doctor’s functional assessment that the claimant could perform one- 15 or two-step instructions, but then assessed a limitation to “simple repetitive tasks” 16 without expressly discounting the one- or two-step limitation. Banales, 2017 WL 17 651941, at *2. The court found error and remanded the matter to the Commissioner. 18 Id. at *3. Similarly, in Garcia v. Colvin, 2016 WL 6304626, at *6 (C.D. Cal. Oct. 27, 19 2016), the court found that although the ALJ’s “simple, repetitive tasks RFC 20 limitation” was consistent with a doctor’s “simple, routine non-stressful work” 21 opinion, it was “plainly inconsistent with [the doctor’s] ‘easy 1, 2 step directions’ 22 limitation which the ALJ decision never mentions.” The court reversed the 23 Commissioner’s decision, adding that the “ALJ necessarily rejected the latter 24 limitation without any explanation as required by Social Security regulations.” 25 Garcia, 2016 WL 6304626 at *6. 26 Here, the ALJ’s RFC limiting Plaintiff to simple, routine tasks is consistent 27 with part of Dr. Caruso-Radin’s opinion, but fails to take into account her opinion 28 that Plaintiff could understand, remember, and carry out two-step commands. The 5 1 ALJ’s failure to either incorporate this opinion of Dr. Caruso-Radin, or provide 2 sufficient reasons for rejecting it, constituted error. See Burson v. Berryhill, 2017 WL 3 1065140, at *4 (N.D. Cal. Mar. 20, 2017) (ALJ erred by limiting the claimant to 4 “simple, repetitive tasks” without either including or expressly discounting doctor’s 5 opinion that claimant was capable of performing one- and two-step instruction 6 work”)); Wells v. Colvin, 2016 WL 4744668, at *8 (E.D. Cal. Sept. 13, 2016) (error 7 where ALJ purported to accept doctor’s opinion that claimant could “sustain simple 8 one-two step repetitive tasks,” but “did not adopt this limitation in the RFC, instead 9 limiting Plaintiff to “‘simple, routine, and repetitive tasks’”). 10 Furthermore, the error was not harmless. As Plaintiff points out, the jobs 11 identified by the VE require Level 2 reasoning, which Plaintiff may not be able to 12 perform if she has a 1-2 step process limitation. See Brown v. Berryhill, 2018 WL 13 748150, at *3 (C.D. Cal. Feb. 7, 2018) (the ALJ erred “in failing to address or 14 otherwise account for [doctor’s] opinion, including the limitation to ‘simple 1–2 step 15 procedures,’ and such error was not harmless”); Benavidez v. Colvin, 2014 WL 16 1245643, at *7 (N.D. Cal. Mar. 25, 2014) (where claimant was limited to execution 17 of “simple one- and two-step commands,” claimant only had RFC for Reasoning 18 Level 1 jobs). 20 REMEDY Ninth Circuit case law “precludes a district court from remanding a case for an 21 award of benefits unless certain prerequisites are met.” Dominguez v. Colvin, 808 22 F.3d 403, 407 (9th Cir. 2016) (citations omitted). “The district court must first 23 determine that the ALJ made a legal error, such as failing to provide legally sufficient 24 reasons for rejecting evidence. . . . If the court finds such an error, it must next review 25 the record as a whole and determine whether it is fully developed, is free from 26 conflicts and ambiguities, and all essential factual issues have been resolved.” 27 Dominguez, 808 F.3d at 407 (citation and internal quotation marks omitted). 19 28 Although the Court has found error as discussed above, the record on the whole 6 1 is not fully developed and factual issues remain outstanding. The issues concerning 2 Plaintiff’s alleged disability “should be resolved through further proceedings on an 3 open record before a proper disability determination can be made by the ALJ in the 4 first instance.” See Brown-Hunter v. Colvin, 806 F.3d 487, 496 (9th Cir. 2015); see 5 also Treichler, 775 F.3d at 1101 (remand for award of benefits is inappropriate where 6 “there is conflicting evidence, and not all essential factual issues have been 7 resolved”) (citation omitted); Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 8 1135, 1138 (9th Cir. 2011) (same where the record does not clearly demonstrate the 9 claimant is disabled within the meaning of the Social Security Act). Accordingly, the appropriate remedy is a remand for further administrative 10 11 proceedings pursuant to sentence four of 42 U.S.C. § 405(g).2 12 ORDER 13 IT IS ORDERED that Judgment be entered reversing the decision of the 14 Commissioner of Social Security and remanding this matter for further 15 administrative proceedings consistent with this opinion. 16 17 DATED: 7/31/2018 18 19 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2 It is not the Court’s intent to limit the scope of the remand. 7
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