Karapet Hamasyan v. Nancy A. Berryhill, No. 2:2017cv08514 - Document 21 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge John D. Early. Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE ISORDERED that Judgment be entered reversing the decision of theCommissioner of Social Security and remanding this matter for furtheradministrative proceedings consistent with this Order. (see document for further information) (hr)
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Karapet Hamasyan v. Nancy A. Berryhill Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 KARAPET HAMASYAN, 12 13 14 15 16 17 Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 18 19 20 21 22 23 24 25 26 27 ) Case No. 2:17-cv-08514-JDE ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) ) ) ) Plaintiff Karapet Hamasyan (“Plaintiff”), proceeding without counsel, filed a Complaint on November 22, 2017, seeking review of the Commissioner’s denial of his application for supplemental security income benefits (“SSI”). Dkt. 1. The parties consented to proceed before a magistrate judge. Dkt. 8, 10, 13. Pursuant to the procedures set forth in the Case Management Order, Plaintiff and the Commissioner each filed cross-motions for judgment on the pleadings. Dkt. 18 (“Motion”) and Dkt. 19 (“CrossMotion”), respectively. No optional reply brief was timely filed. The matter now is ready for decision. 28 Dockets.Justia.com 1 I. 2 BACKGROUND 3 Plaintiff filed an application for SSI on April 8, 2014, alleging disability 4 commencing on September 1, 2012. Administrative Record (“AR”) 151-57. 5 After his application was denied (AR 77-90), Plaintiff requested an 6 administrative hearing (AR 100-02), which was held on May 20, 2016. AR 36- 7 76. Plaintiff, represented by a non-attorney representative, appeared and 8 testified before an Administrative Law Judge (“ALJ”). 9 On July 14, 2016, the ALJ issued a written decision finding Plaintiff was 10 not disabled. AR 15-35. The ALJ found Plaintiff had not engaged in 11 substantial gainful employment since April 8, 2014 and suffered from severe 12 impairments of depression, anxiety, disorder of the back, and rotator cuff tear 13 of the shoulders. AR 20. The ALJ found Plaintiff did not have an impairment 14 or combination of impairments that met or medically equaled a listed 15 impairment. Id. The ALJ also found Plaintiff had the residual functional 16 capacity (“RFC”) to perform the demands of medium work as defined in 20 17 C.F.R. § 404.1567(c), including (AR 22): 18 [L]ifting up to 50 pounds occasionally and 25 pounds frequently, and 19 sitting, standing and/or walking up to 6 hours in an 8-hour workday, 20 with the following additional restrictions: the [Plaintiff] can only 21 have incidental contact with co-workers and the public, occasional 22 contact with supervisors, and he is limited to simple routine tasks 23 and to making simple work-related decisions. He is further limited 24 to no more than occasional reaching overhead with the left arm. 25 The ALJ found Plaintiff was capable of performing his past relevant work 26 as a “melter and supervisor jewelry department.” AR 30. Accordingly, the 27 ALJ concluded Plaintiff was not under a “disability,” as defined in the 28 Social Security Act. AR 31. On October 18, 2017, the Appeals Council 2 1 denied Plaintiff’s request for review, making the ALJ’s decision the 2 Commissioner’s final decision. AR 1-7. 3 II. 4 LEGAL STANDARDS 5 6 A. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 7 Commissioner’s decision to deny benefits. The ALJ’s findings and decision 8 should be upheld if they are free from legal error and supported by substantial 9 evidence based on the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 10 487, 492 (9th Cir. 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th 11 Cir. 2007). Substantial evidence means such relevant evidence as a reasonable 12 person might accept as adequate to support a conclusion. Lingenfelter v. 13 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less 14 than a preponderance. Id. To determine whether substantial evidence supports 15 a finding, the reviewing court “must review the administrative record as a 16 whole, weighing both the evidence that supports and the evidence that detracts 17 from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 18 (9th Cir. 1998). “If the evidence can reasonably support either affirming or 19 reversing,” the reviewing court “may not substitute its judgment” for that of 20 the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 21 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one 22 rational interpretation, [the court] must uphold the ALJ’s findings if they are 23 supported by inferences reasonably drawn from the record.”). Lastly, even 24 when the ALJ commits legal error, the Court upholds the decision where that 25 error is harmless. Id. at 1115. An error is harmless if it is “inconsequential to 26 the ultimate nondisability determination,” or if “the agency’s path may 27 reasonably be discerned, even if the agency explains its decision with less than 28 ideal clarity.” Brown-Hunter, 806 F.3d at 492 (citation omitted). 3 1 2 B. Standard for Determining Disability Benefits When the claimant’s case has proceeded to consideration by an ALJ, the 3 ALJ conducts a five-step sequential evaluation to determine at each step if the 4 claimant is or is not disabled. See Molina, 674 F.3d at 1110. 5 First, the ALJ considers whether the claimant currently works at a job 6 that meets the criteria for “substantial gainful activity.” Id. If not, the ALJ 7 proceeds to a second step to determine whether the claimant has a “severe” 8 medically determinable physical or mental impairment or combination of 9 impairments that has lasted for more than twelve months. Id. If so, the ALJ 10 proceeds to a third step to determine if the impairments “meet or equal” any of 11 the “listed impairments” set forth in the Social Security regulations at 20 12 C.F.R. Part 404, Subpart P, Appendix 1. See Rounds v. Comm’r Soc. Sec. 13 Admin., 807 F.3d 996, 1001 (9th Cir. 2015). 14 If the claimant’s impairments do not meet or equal a “listed 15 impairment,” before proceeding to the fourth step the ALJ assesses the 16 claimant’s RFC, that is, what the claimant can do on a sustained basis despite 17 the limitations from his impairments. See 20 C.F.R. §§ 404.1520(a)(4), 18 416.920(a)(4); Social Security Ruling 96-8p. After determining the RFC, the 19 ALJ proceeds to the fourth step and determines whether the claimant has the 20 RFC to perform his past relevant work, either as he “actually” performed it 21 when he worked in the past, or as that same job is “generally” performed in the 22 national economy. See Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016). 23 If the claimant cannot perform his past relevant work, the ALJ proceeds 24 to a fifth and final step to determine whether there is any other work, in light of 25 the claimant’s RFC, age, education, and work experience, that the claimant 26 can perform and that exists in “significant numbers” in either the national or 27 regional economies. See Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 28 1999). If the claimant can do other work, he is not disabled; but if the claimant 4 1 cannot do other work and meets the duration requirement, the claimant is 2 disabled. See Id. at 1099. 3 The claimant generally bears the burden at each of steps one through 4 four to show he is disabled, or he meets the requirements to proceed to the 5 next step; and the claimant bears the ultimate burden to show he is disabled. 6 See, e.g., Molina, 674 F.3d at 1110; Johnson v. Shalala, 60 F.3d 1428, 1432 7 (9th Cir. 1995). However, at Step Five, the ALJ has a “limited” burden of 8 production to identify representative jobs that the claimant can perform and 9 that exist in “significant” numbers in the economy. See Hill v. Astrue, 698 10 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100. 11 III. 12 DISCUSSION 13 Plaintiff presents four issues , renumbered herein (Motion at 2): 14 Issue No. 1: Whether the ALJ failed to properly evaluate Plaintiff’s 15 depression and anxiety disorders by not incorporating the limitations raised by 16 the examining and non-examining sources into the hypotheticals posed to the 17 vocational expert (“VE”); 18 Issue No. 2: Whether the ALJ erred in failing to assist Plaintiff in fully 19 developing his claim by not referring Plaintiff to an orthopedic consultative 20 examination as requested at the hearing; 21 22 23 24 25 26 Issue No. 3: Whether the ALJ failed to properly evaluate Plaintiff’s severe physical impairments and resulting limitations; and Issue No. 4: Whether the ALJ’s finding at Step Five directly contradicts his finding at Step Four. A. Mental Limitations Plaintiff argues the ALJ did not properly evaluate Plaintiff’s depression 27 and anxiety disorders by not incorporating the limitations raised by the 28 examining and non-examining sources into the hypotheticals posed to the VE. 5 1 On June 10, 2014, Jeriel Lorca, M.D. (“Dr. Lorca”), an examining 2 physician, opined that Plaintiff had moderate limitations with regard to: (1) 3 performing detailed and complex tasks; (2) completing a normal workday or 4 work week without interruptions resulting from any psychiatric conditions; (3) 5 interacting with coworkers and the public; and (4) dealing with the usual 6 stresses encountered in competitive work. AR 248. Dr. Lorca also assessed that 7 Plaintiff had mild limitations concerning the ability to: (1) perform simple and 8 repetitive tasks; (2) maintain regular attendance; and (3) perform work 9 activities on a consistent basis. Id. Dr. Lorca found Plaintiff had no limitations 10 with regard to performing work activities without additional supervision or 11 accepting instructions from supervisors. Id. 12 On August 12, 2014, Joshua D. Schwartz, Ph.D. (“Dr. Schwartz”), a 13 non-examining physician, opined Plaintiff had moderate limitations in his 14 ability to: (1) understand and remember detailed instructions; (2) sustain an 15 ordinary routine without special supervision; (3) complete a workday and 16 workweek without interruptions from psychologically based symptoms; (5) 17 perform at a consistent pace without an unreasonable number and length of 18 rest periods; (6) interact appropriately with the general public; and (7) respond 19 appropriately to changes in the work setting. AR 87-88. Dr. Schwartz further 20 assessed that Plaintiff was not limited regarding the ability to: (1) remember 21 locations and work-like procedures; (2) understand and remember very short 22 and simple instructions; (3) carry our very short and simple instructions; (4) 23 maintain attention and concentration for extended periods; (5) perform 24 activities within a schedule, maintain regular attendance, and be punctual 25 within customary tolerances; (6) work in coordination with or in proximity to 26 others without being distracted by them; (7) make simple work-related 27 decisions; (8) ask simple questions or request assistance; (9) accept instructions 28 and respond appropriately to criticism from supervisors; (10) get along with 6 1 coworkers or peers without distracting them or exhibiting behavioral extremes; 2 (11) maintain socially appropriate behavior and to adhere to the basic 3 standards of neatness; (12) be aware of normal hazards and take appropriate 4 precautions; (13) travel in unfamiliar places or use public transportation; and 5 (14) set realistic goals or make plans independently of others. Id. 6 The ALJ gave “great” and “considerable” weight to the opinions of Drs. 7 Lorca and Schwartz because their findings were consistent and supported by 8 the medical evidence of record. AR 29. The ALJ found Plaintiff had moderate 9 difficulties regarding concentration, persistence, or pace. AR 21. 10 Plaintiff argues that despite giving heightened weight to these opinions, 11 the ALJ failed to incorporate the opinions’ limitations during Step Four and 12 failed to incorporate those opinions into the hypothetical questions posed to 13 the VE. Motion at 4. Plaintiff contends “concentration, persistence, or pace are 14 not the same thing as being limited to simple, repetitive tasks.” Id. at 5. The 15 Commissioner argues the moderate limitations assessed by Drs. Lorca and 16 Schwartz are consistent with the ALJ’s assessment limiting Plaintiff to 17 incidental contact with coworkers and the public, occasional contact with 18 supervisors, simple routine tasks, and simple work-related decisions. Cross- 19 Motion at 5. 20 The Court finds the ALJ properly accounted for Plaintiff’s moderate 21 mental limitations assessed by Drs. Lorca and Schwartz. See Walsh v. 22 Berryhill, 2017 WL 7859362, at *5-6 (C.D. Cal. Nov. 29, 2017) (finding ALJ’s 23 hypothetical question to VE was proper as the limitation therein to “simple 24 repetitive tasks” accounted for plaintiff’s “moderate difficulties” in 25 “concentration, persistence, and pace.”); see also Stubbs–Danielson v. Astrue, 26 539 F.3d 1169, 1173-74 (9th Cir. 2008) (holding ALJ’s RFC finding properly 27 incorporated the limitations identified by doctors, including those related to 28 concentration, persistence, and pace). An ALJ’s hypothetical question to a VE 7 1 must account for all the claimant’s limitations. Thomas v. Barnhart, 278 F.3d 2 947, 956 (9th Cir. 2002) (citations omitted). “[A]n ALJ’s assessment of a 3 claimant adequately captures restrictions related to concentration, persistence, 4 and pace where the assessment is consistent with the restrictions identified in 5 the medical testimony.” Stubbs–Danielson, 539 F.3d at 1173-74. 6 Here, the ALJ’s RFC specifically provided that Plaintiff could only have 7 “incidental contact with coworkers and the public,” “occasional contact with 8 supervisors,” “simple routine tasks,” and “simple work-related decision.” AR 9 22. These restrictions are consistent with the restrictions identified in the 10 medical testimony of Drs. Lorca and Schwartz. AR 87-88, 248. Drs. Lorca and 11 Schwartz both concluded—despite moderate limitations with concentration, 12 persistence, or pace—Plaintiff generally retained the ability to perform simple 13 tasks with limited contacts with others. Id. The ALJ properly accounted for 14 Plaintiff’s moderate mental limitations assessed by Drs. Lorca and Schwartz. 15 16 B. Physical Limitations Plaintiff contends the ALJ erred in failing to assist Plaintiff in fully 17 developing his claim by not referring Plaintiff to an orthopedic consultative 18 examination as requested at the hearing. 19 During the 2016 hearing, Plaintiff’s representative requested Plaintiff be 20 referred to a consultative examination, preferably an orthopedic examination, 21 because Plaintiff’s alleged physical impairments were orthopedic in nature and 22 he had not been examined by agency referred physicians for those 23 impairments. AR 39-42. The ALJ stated she would consider the issue, but she 24 did not address the issue in her decision. AR 42. The ALJ found Plaintiff had 25 the severe physical impairments of disorder of the back and rotator cuff tear of 26 the shoulders, but the ALJ still concluded Plaintiff could perform medium 27 work as defined in 20 C.F.R. 416.967(c) with some restrictions. AR 20, 22. 28 8 1 Plaintiff argues “it was brought to the ALJ’s attention that plaintiff had 2 attained age 55 on September 27, 2015, and with a limitation to a light 3 exertional level of activity, and with a hypothetical limitation to simple, 4 repetitive tasks, and orthopedic [consultative examination] was pertinent and 5 necessary, because if the orthopedic examiner were to opine that plaintiff was 6 limited to a light exertional level of activity then plaintiff would not be able to 7 perform his past jobs, and GRID Rule 202.06 would direct a finding of 8 disabled at age 55.” Motion 3. The Commissioner counters that Plaintiff 9 “points to no ambiguity or insufficiency in the evidence requiring a physical 10 consultative examination,” and Plaintiff has “waived the issue by relying on 11 conclusory assertions and failing to present any cogent argument in his initial 12 brief.” Cross-Motion 3-4. 13 On the present record, substantial evidence does not support the ALJ’s 14 conclusion regarding Plaintiff’s physical limitations in the RFC. No medical 15 opinion of record addresses Plaintiff’s work-related physical functional 16 capacity. The ALJ could not properly rely on the ALJ’s own lay understanding 17 to interpret the medical records and the medical examination results so as to 18 gauge the functional seriousness of Plaintiff’s severe impairments. See Recio v. 19 Berryhill, 2018 WL 4859257, at *2-3 (C.D. Cal. Oct. 5, 2018); see also Tackett, 20 180 F.3d at 1102-03; Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 21 Thus, absent expert assistance, the ALJ could not competently translate the 22 medical evidence in this case into an RFC assessment. See Tackett v. Apfel, 23 180 F.3d at 1102-03 (holding ALJ’s residual functional capacity assessment 24 cannot stand in absence of evidentiary support); Day, 522 F.2d at 1156 25 (holding an ALJ is forbidden from making his or her own medical assessment 26 beyond that demonstrated by the record). 27 28 For example, the ALJ appears to have inferred from Plaintiff’s treatment that his severe back disorder and rotator cuff tear of the shoulders does not 9 1 reduce his functionality below the capacity to perform medium work. AR 30. 2 The ALJ reasoned that if Plaintiff’s physical impairments had been “truly 3 limited” to the extent alleged, his treating physicians would have made note of 4 such limitations in the records and he would have received more treatment 5 than chiropractic and physical therapy. Id. However, the ALJ lacks the 6 medical expertise to draw this speculative inference. The ALJ is not competent 7 to opine regarding the relationship, if any, between Plaintiff’s severe physical 8 impairment treatments and the particular limiting effects of the impairments 9 symptoms. See Recio, 2018 WL 4859257, at *2-3. Furthermore, the record 10 contains x-rays pertaining to Plaintiff’s severe physical impairments. AR 296- 11 97. Inferring functional capacity from the radiologists’ readings of these x-rays 12 would also appear to be beyond the medical expertise of the ALJ. Recio, 2018 13 WL 4859257 at *2. 14 The ALJ should have more fully and fairly developed the insufficient 15 and ambiguous record in the present case on the above issues. See Sims v. 16 Apfel, 530 U.S. 103, 110-11 (2000) (“Social Security proceedings are 17 inquisitorial rather than adversarial. It is the ALJ’s duty to investigate the facts 18 and develop the arguments both for and against granting benefits . . . ”); Mayes 19 v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (holding ALJ’s duty to 20 develop the record further is triggered “when there is ambiguous evidence or 21 when the record is inadequate to allow for the proper evaluation of the 22 evidence”) (citation omitted); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 23 1983) (“[T]he ALJ has a special duty to fully and fairly develop the record to 24 assure the claimant’s interests are considered. This duty exists even when the 25 claimant is represented by counsel.”). Here, the ALJ should have ordered 26 examinations and evaluations of Plaintiff by a consultative physician with the 27 appropriate specialty. See Reed v. Massanari, 270 F.3d 838, 843 (9th Cir. 28 2001) (holding where available medical evidence is insufficient to determine 10 1 the severity of the claimant's impairment, the ALJ should order a consultative 2 examination by a specialist); accord Kish v. Colvin, 552 F. App’x 650, 651 (9th 3 Cir. 2014). 4 Further, the Court does not find Plaintiff waived his argument on this 5 issue. Plaintiff pointed to insufficiency in the evidence by stating an orthopedic 6 consultative examination was “pertinent and necessary” because if the 7 examination revealed Plaintiff was limited to a light exertional level of activity, 8 then he would not be able to perform his past jobs. Motion at 3. Plaintiff 9 contended the evidence was insufficient because he “had never been examined 10 11 by agency referred physicians for his physical impairments.” Id. The Court is unable to deem the errors in the present case to have been 12 harmless. See Molina, 674 F.3d at 1115 (holding an error “is harmless where it 13 is inconsequential to the ultimate non-disability determination”) (citations and 14 quotations omitted); McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) 15 (holding error is not harmless where “the reviewing court can determine from 16 the ‘circumstances of the case’ that further administrative review is needed to 17 determine whether there was prejudice from the error”). 18 19 C. Remand is appropriate. The decision whether to remand for further proceedings is within this 20 Court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) 21 (as amended). Where no useful purpose would be served by further 22 administrative proceedings, or where the record has been fully developed, it is 23 appropriate to exercise this discretion to direct an immediate award of benefits. 24 See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Harman, 211 F.3d 25 at 1179 (noting that “the decision of whether to remand for further proceedings 26 turns upon the likely utility of such proceedings”). 27 28 The Court finds that remand for further proceedings is appropriate to permit the ALJ to further fully and fairly develop the record consistent with the 11 1 foregoing. As further development of the record may have a material impact 2 on multiple areas of the sequential evaluation, the ALJ is free to conduct such 3 further proceedings and make such further findings as may be warranted. 4 Because the further proceeding directed herein may materially impact the 5 ALJ’s findings which form the basis for Plaintiff’s arguments in Issue Nos. 3 6 and 4 herein, the Court declines to reach the merits of those arguments at this 7 time as they may be addressed appropriately by the ALJ if such issues arises 8 upon further proceedings as directed herein. 9 IV. 10 ORDER 11 Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS 12 ORDERED that Judgment be entered reversing the decision of the 13 Commissioner of Social Security and remanding this matter for further 14 administrative proceedings consistent with this Order. 15 16 Dated: November 16, 2018 17 ______________________________ JOHN D. EARLY United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 12
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