Robert Elliott Raymond v. Nancy A. Berryhill, No. 2:2018cv03787 - Document 25 (C.D. Cal. 2019)
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. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (See document for further details). (mr)
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Robert Elliott Raymond v. Nancy A. Berryhill Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT ELLIOTT RAYMOND, Plaintiff, 12 13 14 15 CASE NO. CV 18-3787 SS MEMORANDUM DECISION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 Robert 21 Elliott Raymond (“Plaintiff”) brings this action 22 seeking to overturn the decision of the Acting Commissioner of 23 Social 24 application for Disability Insurance Benefits (“DIB”). The parties 25 consented pursuant to 28 U.S.C. § 636(c) to the jurisdiction of 26 the undersigned United States Magistrate Judge. 27 13-14). Security For (the the “Commissioner” reasons stated or below, “Agency”) the denying his (Dkt. Nos. 11, decision of the 28 Dockets.Justia.com 1 Commissioner is REVERSED, and this case is REMANDED for further 2 administrative proceedings consistent with 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 benefits, an 20 Administrative Law Judge (“ALJ”) conducts a five-step inquiry. 20 21 C.F.R. §§ 404.1520, 416.920. 19 To decide if a claimant is entitled to 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 vocational expert (“VE”) or by 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 reference to the Medical-Vocational Guidelines appearing in 20 2 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as “the 3 grids”). 4 When a claimant has both exertional (strength-related) and non- 5 exertional limitations, the grids are inapplicable and the ALJ must 6 take the testimony of a VE. 7 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 8 1988)). Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 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 and concluded that Plaintiff was not disabled within the meaning 15 of the Act. 16 has not engaged in substantial gainful activity during the period 17 from June 13, 2015, the alleged onset date, through March 31, 2017, 18 the date last insured.1 19 through the date last insured, Plaintiff’s lumbar disc disease, 20 obesity, stress disorder 21 disorder are severe impairments. (AR 17). 22 determined that through the date last insured, Plaintiff did not 23 have an impairment or combination of impairments that met or (AR 15-26). post-traumatic At step one, the ALJ found that Plaintiff (AR 17). At step two, the ALJ found that (PTSD), and bipolar At step three, the ALJ 24 25 26 27 28 1 Plaintiff was previously denied disability benefits in decisions issued by another ALJ on April 4, 2014, and June 12, 2015. (AR 15). The alleged onset date in the present claim is the day following the most recent unfavorable decision by an ALJ. (AR 15). 4 1 medically equaled the severity of any of the listings enumerated 2 in the regulations. (AR 18-19). 3 4 The ALJ then assessed Plaintiff’s RFC and concluded that he 5 can perform medium work as defined in 20 C.F.R. § 404.1567(c) 6 except:2 7 8 [Plaintiff] is limited to simple, repetitive, routine 9 tasks. [Plaintiff] has sufficient ability to maintain 10 concentration, persistence, or pace for 2-hour periods. 11 [Plaintiff] is limited to a low stress environment, which 12 is defined as involving only occasional changes in the 13 work setting, occasional decision-making, and occasional 14 judgment. 15 interaction with coworkers. 16 from interaction with the public. [Plaintiff] is limited to occasional [Plaintiff] is precluded 17 18 (AR 19). 19 insured, Plaintiff was unable to perform his past relevant work. 20 (AR 21 experience, and the VE’s testimony, the ALJ determined at step five 22 that through the date last insured there were jobs that existed in 23 significant numbers in the national economy that Plaintiff could 24 have performed, including hand packer, conveyor feeder, and kitchen 24). At step four, the ALJ found that through the date last Based on Plaintiff’s RFC, age, education, work 25 26 27 28 “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. § 404.1567(c). 2 5 1 helper. (AR 24-25). Accordingly, the ALJ found that Plaintiff 2 was not under a disability as defined by the Act from June 13, 3 2015, the alleged onset date through March 31, 2017, the date last 4 insured. (AR 25). 5 6 IV. 7 STANDARD OF REVIEW 8 9 Under 42 U.S.C. § 405(g), a district court may review the “[The] court may set 10 Commissioner’s decision to deny benefits. 11 aside the Commissioner’s denial of benefits when the ALJ’s findings 12 are based on legal error or are not supported by substantial 13 evidence in the record as a whole.” 14 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 15 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 16 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 17 18 “Substantial evidence is more than a scintilla, but less than 19 a preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. 20 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 21 evidence which a reasonable person might accept as adequate to 22 support a conclusion.” 23 evidence supports a finding, the court must “‘consider the record 24 as a whole, weighing both evidence that supports and evidence that 25 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 26 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 27 1993)). 28 or reversing that conclusion, the court may not substitute its (Id.). It is “relevant To determine whether substantial If the evidence can reasonably support either affirming 6 1 judgment for that of the Commissioner. Reddick, 157 F.3d at 720- 2 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 3 1457 (9th Cir. 1995)). 4 5 V. 6 DISCUSSION 7 8 Plaintiff raises two claims for relief: (1) the ALJ failed to 9 properly consider the consultative examiner’s opinion; and (2) the 10 ALJ improperly rejected Plaintiff’s 100% VA disability rating. 11 (Dkt. No. 17). 12 13 A. The ALJ’s Reasons For Rejecting The Consultative Examiner’s Opinion Are Not Supported By Substantial Evidence 14 15 On 16 March 19, 2017, Carson K. Chambers, Ph.D., performed a 17 mental evaluation on behalf of the Agency. 18 appeared to be emotionally uncomfortable, exhibited a tendency to 19 look away, and reported that he has difficulty sleeping, processing 20 information, 21 examination, Plaintiff put forth a reasonable effort but had a 22 “tendency to go off on tangents and speak at length about issues 23 that were not directly related to the interview process.” 24 434). 25 content. 26 he was anxious and depressed, his affect was mood congruent, and 27 he was unable to learn and retain a series of three words and 28 repeat them after a five-minute period. and completing projects. (AR 433-36). (AR Plaintiff 433-34). On (AR Dr. Chambers had to bring Plaintiff back into the interview (AR 434). Plaintiff’s thought process was tangential, 7 (AR 434-35). Dr. Chambers 1 diagnosed a history of PTSD. (AR 434). He concluded that Plaintiff 2 was mildly impaired in his ability to work with supervisors, 3 coworkers, and the public, and moderately impaired in his ability 4 to perform repetitive tasks, to perform complex tasks, to deal with 5 regular 6 stressors.3 workplace attendance, and to deal with workplace (AR 435-36). 7 8 An ALJ must take into account all medical opinions of record. 9 20 C.F.R. §§ 404.1527(b), 416.927(b). The regulations “distinguish 10 among the opinions of three types of physicians: (1) those who 11 treat the claimant (treating physicians); (2) those who examine 12 but do not treat the claimant (examining physicians); and (3) those 13 who 14 physicians).” 15 as amended (Apr. 9, 1996). 16 opinion carries more weight than an examining physician’s, and an 17 examining physician’s opinion carries more weight than a reviewing 18 [(nonexamining)] physician’s.” 19 1195, 1202 (9th Cir. 2001); accord Garrison v. Colvin, 759 F.3d 20 995, 1012 (9th Cir. 2014). 21 physician’s testimony depends ‘on the degree to which they provide 22 supporting explanations for their opinions.’” 23 Soc. Sec., 528 F.3d 1194, 1201 (9th Cir. 2008) (quoting 20 C.F.R. 24 § 404.1527(d)(3)). neither examine nor treat the claimant (nonexamining Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), “Generally, a treating physician’s Holohan v. Massanari, 246 F.3d “The weight afforded a non-examining Ryan v. Comm’r of 25 26 27 28 3 The VE testified that there are no jobs available for someone who is not capable of even simple, repetitive tasks. (AR 122). 8 “To 1 reject an uncontradicted opinion of a treating or 2 examining doctor, an ALJ must state clear and convincing reasons 3 that are supported by substantial evidence.” 4 427 F.3d 1211, 1216 (9th Cir. 2005). 5 doctor’s opinion is contradicted by another doctor’s opinion, an 6 ALJ may only reject it by providing specific and legitimate reasons 7 that 8 Reddick, 157 F.3d at 725 (the “reasons for rejecting a treating 9 doctor’s credible opinion on disability are comparable to those 10 required for rejecting a treating doctor’s medical opinion.”). 11 “The ALJ can meet this burden by setting out a detailed and thorough 12 summary of the facts and conflicting clinical evidence, stating 13 his interpretation thereof, and making findings.” 14 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citation omitted). 15 “When an examining physician relies on the same clinical findings 16 as a treating physician, but differs only in his or her conclusions, 17 the conclusions of the examining physician are not ‘substantial 18 evidence.’” are supported by substantial Bayliss v. Barnhart, “If a treating or examining evidence.” Id.; see also Trevizo v. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 19 The ALJ found Dr. Chambers’s opinion “partially persuasive”: 20 21 “The mild findings upon examination were consistent 22 reports in the mental status examinations throughout the evidence. 23 The assessed moderate functional limitations were too restrictive 24 due to the lack of findings. 25 medically unsupported.” 26 was contradicted by the opinion of the state agency consultant (AR 27 184-99), the ALJ was required to give specific and legitimate 28 reasons that are supported by substantial evidence in the record with the Those limitations were rejected as (AR 23). 9 Because Dr. Chambers’s opinion 1 for rejecting Dr. Chambers’s opinion. 2 31 (“the opinion of an examining doctor, even if contradicted by 3 another doctor, can only be rejected for specific and legitimate 4 reasons that are supported by substantial evidence in the record”). 5 Here, the ALJ neither gave specific reasons nor supported his 6 reasons with substantial evidence. See Lester, 81 F.3d at 830– 7 First, 8 9 Dr. Chambers’s objective examinations. opinion is supported by his own In evaluating a consultative examiner’s 10 opinion, the ALJ must consider the extent to which the opinion is 11 supported by clinical and diagnostic examinations in determining 12 the weight to give the opinion. 13 §§ 404.1527(c)(2)–(6), 416.927(c)(2)-(6). While the ALJ summarized 14 some 15 acknowledge that Plaintiff was unable to maintain focus throughout 16 the evaluation and could not retain a series of three words and 17 repeat them after a period of five minutes. 18 ALJ may not pick and choose evidence unfavorable to the claimant 19 while ignoring evidence favorable to the claimant.” 20 639 F. App’x 476, 477 (9th Cir. 2016) (citing Ghanim v. Colvin, 21 763 F.3d 1154, 1164 (9th Cir. 2014)). 22 maintain focus or remember simple items is consistent with a 23 moderate impairment in performing repetitive or complex tasks. 24 Further, 25 Chambers’s evaluation is consistent with a moderate impairment in 26 dealing with workplace stressors. of Dr. Chambers’s Plaintiff’s Revels, 874 F.3d at 654; 20 C.F.R. clinical emotional 27 28 10 findings, the ALJ failed (AR 434-35). to “[A]n Cox v. Colvin, Plaintiff’s inability to discomfort throughout Dr. 1 Second, the ALJ does not identify which medical records 2 contradict Dr. Chambers’s opinion. 3 that 4 Chambers’s opinion. 5 assessing the medical record prior to describing Dr. Chambers’s 6 report does not provide a “specific” reason for rejecting the 7 consultative examiner’s opinion. 8 5839, 2015 WL 1534119, at *4 (N.D. Cal. Apr. 1, 2015) (ALJ cannot 9 reject examining physician’s opinion without explanation); Nesbit 10 v. Colvin, No. C13-0830, 2013 WL 6880929, at *5 (W.D. Wash. Dec. 11 31, 2013) (failing “to discuss a May 2009 evaluation by examining 12 physician . . . or to explain why the opinions contained in that 13 evaluation were rejected” is reversible error). 14 VA found that Plaintiff was 100% disabled due to his PTSD.4 15 515). the ALJ cited VA treatment (AR 23). notes Defendant contends that contradicted (Dkt. No. 24 at 4-5). Dr. However, merely See Rayford v. Colvin, No. 13 CV In any event, the (AR 16 Defendant also argues that the ALJ’s opinion was supported by 17 18 the findings of the Agency consultant’s opinion. 19 5-6). 20 by 21 rejection of the opinion of either an examining physician or a 22 treating 23 original). 24 consultants’ moderate functional limitations (AR 23-24), and thus 25 it is unclear which evaluations the ALJ relied on in formulating 26 his RFC. (Dkt. No. 24 at However, “[t]he opinion of a nonexamining physician cannot itself constitute physician.” substantial Lester, 81 evidence F.3d at that 831 justifies (emphasis the in In any event, the ALJ rejected the Agency medical The ALJ’s lay opinion on Plaintiff’s medical condition 27 4 28 The VA’s disability report is discussed in more detail below. 11 1 cannot provide the medical evidence need to support the ALJ’s RFC 2 determination. 3 medical 4 Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is forbidden 5 from 6 demonstrated by the record); Rohan v. Chater, 98 F.3d 966, 970 (7th 7 Cir. 1996) (“ALJs must not succumb to the temptation to play doctor 8 and make their own independent medical findings”); accord Najera 9 v. Colvin, No. CV 16-2442, 2016 WL 7167887, at *3 (C.D. Cal. Dec. See Tackett, 180 F.3d at 1102-03 (there was no evidence making his to support or her own the ALJ’s medical determination); assessment Day beyond v. that 10 8, 2016). The ALJ appears to have substituted his own judgment 11 for that of Dr. Chambers and failed to give specific and legitimate 12 reasons for doing so. 13 The ALJ concluded that Plaintiff’s “allegation of disability 14 15 was damaged 16 [Plaintiff’s] functional capacity.” 17 Plaintiff’s activities of daily living, which include taking care 18 of personal hygiene, household chores, shopping, walking, and 19 exercising. 20 of these activities contradict Dr. Chambers’s clinical findings or 21 how they demonstrate an ability to perform fulltime work. The 22 ability does not 23 necessarily equate with the ability to perform fulltime work. See 24 Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (“[T]he mere 25 fact that a plaintiff has carried on certain daily activities does 26 not in any way detract from her credibility as to her overall 27 disability. 28 to be disabled.”) (citation and alterations omitted). to by the acknowledgments (AR 24). perform in the (AR 24). record regarding The ALJ noted However, the ALJ does not explain how any some activities of daily living One does not need to be utterly incapacitated in order 12 Finally, Dr. Chambers’s opinion is consistent with other 1 2 record evidence. On January 8, 2016, Plaintiff was seen at the VA 3 and was noted to need help with feeding, bathing, personal hygiene, 4 preparing 5 managing finances. 6 reported continued issues with insomnia and nightmares. 7 He exhibited symptoms of hypomania, PTSD, pressured speech, and 8 racing thoughts. meals, transportation, (AR 391-92). managing medications, and On June 13, 2016, Plaintiff (AR 384). (AR 384). 9 10 In sum, the ALJ failed to provide specific and legitimate 11 reasons for rejecting Dr. Chambers’s opinion. 12 shall reevaluate the weight to be afforded Dr. Chambers’s opinion. On remand, the ALJ 13 14 B. The ALJ Failed To Develop The Record And Failed To Properly Assess The VA’s Disability Rating 15 16 17 The Veteran’s Administration determined that Plaintiff’s PTSD 18 with bipolar disorder and alcohol abuse (in remission) caused a 19 100% disability rating. 20 the supporting evidence was “enclosed” (AR 515), no supporting 21 evidence is included in the record.5 22 page form . . . not persuasive because it did not include any 23 discussion of the objective findings on which the conclusion was 24 based.” (AR 515). While the VA report noted that The ALJ found “[t]his single (AR 22). 25 26 On October 19, 2017, Plaintiff’s counsel informed the Agency that “additional evidence remains outstanding from VA West Los Angeles.” (AR 326). 5 27 28 13 The ALJ must ordinarily give the VA’s disability determination 1 2 “great weight.” 3 2012); see Luther v. Berryhill, 891 F.3d 872, 876 (9th Cir. 2018) 4 (“We have found great weight to be ordinarily warranted because of 5 the 6 programs.”) (citation omitted). 7 and Agency’s criteria for determining disability are not identical, 8 the VA’s disability rating is not dispositive. 9 640 F.3d 881, 886 (9th Cir. 2011). The ALJ may give the VA’s 10 determination she 11 specific, 12 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir. 13 2009); 14 existence of a VA rating in the ALJ’s decision is not enough. 15 [Instead, the ALJ must] . . . provide . . . persuasive, specific, 16 and valid reasons for rejecting it.”). marked similarity less valid see Hiler v. Astrue, 687 F.3d 1208, 1211 (9th Cir. between weight reasons” Luther, 891 if that F.3d these two federal disability Nevertheless, because the VA’s he or are at McLeod v. Astrue, provides “supported 877 by (“Simply “persuasive, the record.” mentioning the 17 18 While the absence of supporting evidence provides a specific 19 and valid reason for rejecting the VA’s report, the ALJ also has 20 an obligation to develop the record. 21 the ALJ has a special, independent duty to develop the record fully 22 and 23 considered. 24 2001); Smolen, 80 F.3d at 1288. However, the “ALJ’s duty to develop 25 the record is triggered only when there is ambiguous evidence or 26 when the record is inadequate to allow for proper evaluation of 27 the evidence.” 28 2001); accord McLeod, 640 F.3d at 885 & n.3. fairly and to assure that the In Social Security cases, claimant’s interests are Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 14 1 Here, there is a compelling need to develop the record. 2 VA’s 100% disability determination is ordinarily entitled to “great 3 weight.” 4 VA’s 5 ambiguous and inadequate for the ALJ to properly evaluate the VA’s 6 report and findings, yet the ALJ is required to give the VA decision 7 “great weight”. 8 seeking the supporting evidence from the VA and shall either give 9 the Luther, 891 F.3d at 876. supporting VA’s evidence. Thus, The The record, however, lacks the the present record is both On remand, the ALJ shall assist Plaintiff in disability determination great weight or provide 10 persuasive, specific, and valid reasons for rejecting it. Luther, 11 891 F.3d at 876-77. 12 13 VI. 14 CONCLUSION 15 16 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 17 the decision of the Commissioner and REMANDING this matter for 18 further proceedings consistent with this decision. 19 ORDERED that the Clerk of the Court serve copies of this Order and 20 the Judgment on counsel for both parties. IT IS FURTHER 21 22 DATED: April 23, 2019 23 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 24 25 26 27 THIS DECISION IS NOT INTENDED FOR PUBLICATION LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. 28 15 IN WESTLAW,
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