Angelberto Novoa v. Nancy A. Berryhill, No. 2:2018cv03205 - Document 23 (C.D. Cal. 2018)
Court Description: MEMORANDUM AND ORDER REVERSING AND REMANDING DECISION OF THE COMMISSIONER FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Magistrate Judge Alexander F. MacKinnon. IT IS THEREFORE 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 details.) (sbou)
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Angelberto Novoa 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 ANGELBERTO N.1, 12 Case No. 2:18-cv-03205-AFM Plaintiff, 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 MEMORANDUM AND ORDER REVERSING AND REMANDING DECISION OF THE COMMISSIONER FOR FURTHER ADMINSTRATIVE PROCEEDINGS Defendant. 17 18 BACKGROUND 19 20 On July 27, 2012, Plaintiff applied for supplemental security income. (AR 21 236-42.) The Social Security Administration denied the claim initially. (AR 123- 22 27.) On February 13, 2014, an Administrative Law Judge (ALJ) held a hearing (AR 23 45-75), and on February 25, 2014, the ALJ issued a partially favorable decision 24 finding Plaintiff disabled beginning August 20, 2013 – but not prior thereto. (AR 25 101-07.) Following a request for review by Plaintiff, the Appeals Council remanded 26 27 28 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. Dockets.Justia.com 1 the case for further proceedings. (AR 112-16.) On remand, the ALJ held a hearing 2 on June 7, 2016. (AR 76-82.) On March 2, 2017, the ALJ issued a decision finding 3 that Plaintiff was not disabled from July 27, 2012 through August 19, 2013. (AR 4 19-28.) On March 20, 2018, the Appeals Council denied a request for review filed 5 by Plaintiff (AR 1-6), and on April 17, 2018, Plaintiff filed the present action. The 6 Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision 7 final for judicial review. (AR 1-6.) Plaintiff then filed this action pursuant to 42 8 U.S.C. § 405(g). Plaintiff filed a memorandum in support of his complaint (ECF 9 No. 19), and the Commissioner then filed a “memorandum in support of remand for 10 further proceedings.” (ECF No. 21.) Plaintiff’s reply opposes remand for further 11 administrative proceedings and instead seeks a remand for an immediate award of 12 benefits. For the reasons stated below, the Court remands for further administrative 13 proceedings. 14 DISCUSSION 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); Lingenfelter v. Astrue, 504 F.3d 21 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 22 reasonable mind might accept as adequate to support a conclusion.” Richardson, 23 402 U.S. at 401. This Court must review the record as a whole, weighing both the 24 evidence that supports and the evidence that detracts from the Commissioner’s 25 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 26 than one rational interpretation, the Commissioner’s decision must be upheld. See 27 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 28 2 1 The Commissioner (or ALJ) follows a five-step sequential evaluation process 2 in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; 3 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996. 4 In the first step, the Commissioner must determine whether the claimant is 5 currently engaged in substantial gainful activity; if so, the claimant is not disabled 6 and the claim is denied. Id. If the claimant is not currently engaged in substantial 7 gainful activity, the second step requires the Commissioner to determine whether 8 the claimant has a “severe” impairment or combination of impairments significantly 9 limiting his ability to do basic work activities; if not, a finding of nondisability is 10 made and the claim is denied. Id. If the claimant has a “severe” impairment or 11 combination of impairments, the third step requires the Commissioner to determine 12 whether the impairment or combination of impairments meets or equals an 13 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 14 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits 15 are awarded. Id. If the claimant’s impairment or combination of impairments does 16 not meet or equal an impairment in the Listing, the fourth step requires the 17 Commissioner to determine whether the claimant has sufficient “residual functional 18 capacity” to perform his past work; if so, the claimant is not disabled and the claim 19 is denied. Id. The claimant has the burden of proving that he is unable to perform 20 past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the 21 claimant meets this burden, a prima facie case of disability is established. Id. The 22 Commissioner then bears the burden of establishing that the claimant is not 23 disabled, because he can perform other substantial gainful work available in the 24 national economy. Id. he determination of this issue comprises the fifth and final 25 step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 26 828 n.5; Drouin, 966 F.2d at 1257. 27 Ninth Circuit case law “precludes a district court from remanding a case for 28 an award of benefits unless certain prerequisites are met.” Dominguez v. Colvin, 3 1 808 F.3d 403, 407 (9th Cir. 2016) (citations omitted). “The district court must first 2 determine that the ALJ made a legal error, such as failing to provide legally 3 sufficient reasons for rejecting evidence. . . . If the court finds such an error, it must 4 next review the record as a whole and determine whether it is fully developed, is 5 free from conflicts and ambiguities, and all essential factual issues have been 6 resolved.” Dominguez, 808 F.3d at 407 (citation and internal quotation marks 7 omitted). Even then, the Court has discretion to decide to remand for a direct award 8 of benefits – which is a “rare and prophylactic exception to the ordinary remand 9 rule when there is no question that a finding of disability would be required if 10 claimant’s testimony were accepted as true.” Leon v. Berryhill, 880 F.3d 1041, 11 1045 (9th Cir. 2018). As the Ninth Circuit has explained, a remand for direct 12 payment of benefits “is a rare exception . . . intended to deter ALJs from providing 13 boilerplate rejections without analysis.” Id. 14 Here, the first part of the remand-for-benefits test has been met because the 15 Commissioner concedes that the ALJ erred in his evaluation of Plaintiff’s severe 16 impairments and the medical opinion evidence. (ECF No. 21 at 3.) In light of this 17 error, the Commissioner urges that the case should be remanded for further 18 administrative proceedings, but Plaintiff contends that the record is fully developed. 19 He seeks an order remanding the case for an immediate award of benefits. 20 Moving to the second part of the test, the Court finds that the record in this 21 case is not free from conflicts and that further administrative proceedings would be 22 useful. In other words, it is not clear from the record, taken as a whole, “‘that the 23 ALJ would be required to find [the claimant] disabled.’” Treichler, 775 F.3d at 24 1106, quoting Harman v. Appel, 211 F.3d 1172, 1179 (9th Cir. 2000). While the 25 ALJ failed to properly evaluate the medical opinion evidence (including failing to 26 provide legally adequate reasons for discounting certain opinions) and erred at step 27 two in his assessment of the severity of Plaintiff’s mental impairment, the medical 28 opinion evidence includes conflicts and lack of clarity in certain aspects. 4 1 For instance, as the ALJ noted, there is minimal or no evidence of Plaintiff 2 receiving outpatient services, counseling, therapy, or other mental health services, 3 other than a 72-hour hold in the summer of 2012 and depression medication 4 prescribed by his primary physician. (AR 25.) At the end of the hold period, it was 5 reported that Plaintiff did not require acute inpatient psychiatric treatment, and he 6 was discharged “with recommendations to continue outpatient followup treatment” 7 − which apparently Plaintiff never sought. (AR 449.) In addition, records from the 8 hold in 2012 note that it was “unclear if [Plaintiff’s] hallucinations are true 9 hallucinations.” (Id.) The interrogatory answer provided by Dr. Benedek also point 10 to Plaintiff’s failure to seek additional treatment and characterize this as evidence of 11 “malingering.” (AR 522.) Dr. Benedek further opined that Plaintiff’s mental health 12 impairments imposed only “mild” functional limitations as to, inter alia, the “ability 13 to do complex work,” “responding to usual work situations,” “ability to withstand 14 stress in the workplace,” and “other mental-related limitations or restrictions.” (AR 15 522.) In contrast, the interrogatory answer provided by Dr. Patrick-MacKinnon (no 16 relation to the undersigned) evaluated Plaintiff as being “moderately” or even 17 “severely” impaired for some of the same functions. (AR 527.) In addition, as the 18 ALJ identified, the psychiatric evaluation performed by Dr. Ijeaku included 19 inconsistencies: “While the claimant reported auditory and visual hallucinations, 20 the mental status examination was essentially unremarkable with a ‘good’ mood, 21 appropriate affect, goal-directed thought process, no suicidal or homicidal ideation, 22 plan or intent and fair insight, memory, concentration, and performance on 23 abstractions.” (AR 23, citing AR 474-75). Despite these generally benign 24 observations, Dr. Ijeaku opined that Plaintiff was moderately impaired in 25 performing complex mental tasks and maintaining concentration. (AR 23, citing 26 AR 475.) 27 Further, although re-evaluation of the medical evidence could well lead to 28 revision of the step two determination regarding severe impairments (in particular, 5 1 whether Plaintiff’s mental impairments were severe), the ALJ would still need to 2 apply the re-assessed medical evidence in the remaining steps of the sequential 3 evaluation before reaching a determination on the disability question. In this regard, 4 as part of the RFC assessment in his March 2017 decision, the ALJ found that 5 Plaintiff’s subjective symptoms were only partially credible, a finding not 6 challenged by Plaintiff on appeal. And as stated by the ALJ, neither of the 7 interrogatory answers (from Drs. Benedek and Patrick-MacKinnon) went through 8 the specifics of the listings in order to support their conclusions that Plaintiff’s 9 mental impairments met Listing 12.04 or 12.03. (AR 24; see also AR 520, 525.) 10 For these reasons, this is not a case where the record as whole leaves not the 11 slightest uncertainty as of the outcome of further proceedings. See Treichler, 775 12 F.3d at 1101 (in determining whether to remand for payment of benefits, a court 13 must “determine whether the record taken as a whole, leaves ‘not the slightest 14 uncertainty as to the outcome of the proceeding’”). Rather, the issues concerning 15 Plaintiff’s alleged disability “should be resolved through further proceedings on an 16 open record before a proper disability determination can be made by the ALJ in the 17 first instance.” See Brown-Hunter v. Colvin, 806 F.3d 487, 496 (9th Cir. 2015); see 18 also Thresher v. Astrue, 283 F. App’x 473, 475 (9th Cir. 2008) (remanding case 19 when it was unclear whether ALJ “came to grips” with specific requirements of 20 Listing 12.05C); Kee v. Berryhill, 2018 WL 1640063, at *5 (N.D. Cal. Apr. 5, 21 2018) (“given the ALJ’s inconsistent findings as to the severity of Kee’s other 22 impairments and her failure to address the conflicting evidence pertaining to the 23 onset of Kee’s mental retardation …, the Court cannot say further administrative 24 proceedings would serve no useful purpose”). 25 Finally, even if the requirements for a remand for benefits were met, it is not 26 apparent that the Court’s discretion should be so exercised in this case. The Ninth 27 Circuit has stated that such a remand, when justified, is a prophylactic remedy to 28 discourage ALJs from providing boilerplate decisions without real analysis. See 6 1 Leon, 880 F.3d at 1045. Here, a need for a prophylactic remedy is not present, 2 where the ALJ’s decision discussed the evidence (including the medical opinions) 3 in some detail and did not rely merely on boilerplate language. Accordingly, the appropriate remedy here is a remand for further 4 5 administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).2 ************ 6 7 IT IS THEREFORE ORDERED that Judgment be entered reversing the 8 decision of the Commissioner of Social Security and remanding this matter for 9 further administrative proceedings consistent with this opinion. 10 11 DATED: 12/18/2018 12 ____________________________________ ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 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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