Rene Malvido v. Nancy A. Berryhill, No. 2:2018cv05854 - Document 19 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded for reconsideration of Dr. Montes' opinions. (see document for details) (hr)
Download PDF
<![CDATA[
Rene Malvido 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 RENE M., 12 Plaintiff, 13 14 15 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) No. CV 18-5854 AGR MEMORANDUM OPINION AND ORDER Plaintiff1 filed this action on July 3, 2018. On January 7, 2019, the parties filed a 18 Joint Stipulation (“JS”) that addressed the disputed issues. The court has taken the 19 matter under submission without oral argument.2 20 21 Having reviewed the entire file, the court reverses the decision of the Commissioner and remands for reconsideration of Dr. Montes’ opinions. 22 23 24 25 26 27 28 1 Plaintiff’s name has been partially redacted in compliance with Fed. R. Civ. P. 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. 2 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. (Dkt. Nos. 10, 12.) Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 Plaintiff filed applications for disability insurance benefits and supplemental 4 security income benefits in October 2014 and alleged an onset date of October 2, 2014. 5 Administrative Record (“AR”) 16. The applications were denied initially. AR 17, 72-73. 6 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). On May 8, 7 2017, the ALJ conducted a hearing at which Plaintiff and a vocational expert (“VE”) 8 testified. AR 30-51. On July 6, 2017, the ALJ issued a decision denying benefits. AR 9 13-25. On May 21, 2018, the Appeals Council denied review. AR 1-5. This action 10 followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court has authority to review the 14 Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not 15 supported by substantial evidence, or if it is based upon the application of improper 16 legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 17 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 “Substantial evidence” means “more than a mere scintilla but less than a 19 preponderance – it is such relevant evidence that a reasonable mind might accept as 20 adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether 21 substantial evidence exists to support the Commissioner’s decision, the court examines 22 the administrative record as a whole, considering adverse as well as supporting 23 evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than 24 one rational interpretation, the court must defer to the Commissioner’s decision. 25 Moncada, 60 F.3d at 523. 26 27 28 2 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, “only if his 5 physical or mental impairment or impairments are of such severity that he is not only 6 unable to do his previous work but cannot, considering his age, education, and work 7 experience, engage in any other kind of substantial gainful work which exists in the 8 national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (citation and 9 quotation marks omitted). 10 B. The ALJ’s Findings 11 The ALJ found that Plaintiff met the insured status requirements through March 12 31, 2015. AR 18. Following the five-step sequential analysis applicable to disability 13 determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),3 the ALJ 14 found that Plaintiff had the severe impairments of stroke, diabetes, diabetic retinopathy, 15 chronic kidney disease, hypertension, and loss of visual acuity and cataracts in both 16 eyes. AR 18. The ALJ found that Plaintiff had the residual functional capacity to perform light 17 18 work except that he could sit, stand and walk six hours in an eight-hour workday; 19 occasionally climb ramps and stairs; occasionally stoop, crouch and crawl; and 20 frequently balance and kneel. He could not drive; climb ladders and scaffolds; or see 21 small objects at a distance due to poor visual acuity. He must avoid all exposure to 22 moving mechanical parts and unprotected heights. AR 19. 23 24 25 26 27 28 3 The five-step sequential analysis examines whether the claimant engaged in substantial gainful activity, whether the claimant’s impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his or her past relevant work, and whether the claimant is able to do any other work. Lounsburry, 468 F.3d at 1114. 3 1 The ALJ found that Plaintiff acquired work skills from past relevant work as a 2 salesperson of office machines that are transferable to other occupations with jobs 3 existing in significant numbers in the national economy such as salesperson-furniture, 4 salesperson-household applicance and salesperson-men’s furnishing. AR 24. 5 C. 6 Plaintiff argues that the ALJ improperly rejected the opinions of his treating 7 Treating Physician physician, Dr. Montes. AR 365-67. 8 An opinion of a treating physician is given more weight than the opinion of 9 non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To reject an 10 uncontradicted opinion of a treating physician, an ALJ must state clear and convincing 11 reasons that are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 12 1211, 1216 (9th Cir. 2005). When a treating physician’s opinion is contradicted by 13 another doctor, “the ALJ may not reject this opinion without providing specific and 14 legitimate reasons supported by substantial evidence in the record. This can be done 15 by setting out a detailed and thorough summary of the facts and conflicting clinical 16 evidence, stating his interpretation thereof, and making findings.” Orn, 495 F.3d at 632 17 (citations and quotation marks omitted). 18 An examining physician’s opinion constitutes substantial evidence when it is 19 based on independent clinical findings. Id. at 632. When an examining physician's 20 opinion is contradicted, “it may be rejected for ‘specific and legitimate reasons that are 21 supported by substantial evidence in the record.’” Carmickle v. Comm'r, 533 F.3d 1155, 22 1164 (9th Cir. 2008) (citation omitted). “‘The opinion of a nonexamining physician 23 cannot by itself constitute substantial evidence that justifies the rejection of the opinion 24 of either an examining physician or a treating physician.’” Ryan v. Comm’r, 528 F.3d 25 1194, 1202 (9th Cir. 2008) (citation and emphasis omitted). However, a non-examining 26 physician’s opinion may serve as substantial evidence when it is supported by other 27 evidence in the record and is consistent with it. Andrews v. Shalala, 53 F.3d 1035, 28 1041 (9th Cir. 1995). 4 1 “When there is conflicting medical evidence, the Secretary must determine 2 credibility and resolve the conflict.” Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 3 2002) (citation and quotation marks omitted). 4 On March 25, 2016, Dr. Montes opined that Plaintiff could lift 10 pounds 5 occasionally and less than 10 pounds frequently. He could stand/walk about 3 hours 6 and sit about 4 hours in a workday with a sit/stand option. AR 365. He could frequently 7 twist, occasionally stoop, and never crouch or climb stairs/ladders. Dr. Montes opined 8 that Plaintiff had muscle weakness from his stroke that affected his ability to reach, 9 handle, finger, feel and push/pull. AR 366. He should avoid concentrated exposure to 10 extreme cold and heat, noise and fumes. He should avoid all exposure to hazards. 11 With these limitations, Plaintiff’s impairments would not cause him to be absent from 12 work. AR 367. 13 The ALJ gave little weight to Dr. Montes’ opinion because it was not well 14 supported by his treatment notes and was provided in the form of a checklist without 15 sufficient rationale to support the “extreme limitations.” AR 22. 16 The ALJ’s reasons are not supported by substantial evidence. Plaintiff had a 17 stroke on or about October 2, 2014. AR 279-80, 286. Dr. Montes’ medical group 18 subsequently began treating Plaintiff. On February 4, 2015, Plaintiff’s was referred to a 19 nephrologist “as soon as possible” for elevated protein urea. He reported pain with 20 walking. Plaintiff had decreased medial arches with tenderness to palpation but had 21 normal gait and station bilaterally with full range of motion. He was prescribed diabetic 22 shoes. AR 421-22, 427, 430, 432. On March 18, 2015, Plaintiff reported walking 20 23 minutes per day, five times per week. AR 415. The examining physician saw Plaintiff 24 on March 17, 2015. AR 349. 25 However, on June 30, 2015, Dr. Montes noted mild facial droop on the right, 26 decreased strength of the right upper and lower extremity (3+/5) and a limp. Dr. Montes 27 diagnosed diabetes, type II, hypertension, chronic kidney disease and hemiplegia 28 affecting right side due to cerebrovascular disease. Dr. Montes continued Plaintiff’s 5 1 medications and advised him to get a cane. AR 405-06. On November 13, 2015, 2 Plaintiff’s neurologic examination showed right sided weakness 4+/5 and diminished 3 sensation from the toes to mid calf bilaterally. Mentation showed slow cognition and 4 slow response. Speech was understandable but deliberate and hesitant. Plaintiff 5 walked with a cane. AR 457. On March 15, 2016, Plaintiff requested the completion of 6 a disability form to be off work indefinitely due to his neurological disability. AR 453. 7 Plaintiff’s examination was unchanged. “Mentally he appears detached from current 8 environment.” Dr. Montes noted that, according to Plaintiff’s significant other, Plaintiff’s 9 mentation has been present for the past several weeks. Dr. Montes stated Plaintiff “will 10 be placed on indefinite disability due to his neurological deficit.” AR 454. Subsequent 11 medical records note hemiparesis (weakness on one side of the body) and dysarthria 12 (speech disorder caused by muscle weakness) as late effects of cerebrovascular 13 disease. AR 441, 443, 445, 448, 450. Plaintiff also had stage IV (severe) chronic 14 kidney disease. AR 443. 15 Dr. Montes’ opinions are well supported by the medical group’s treatment notes, 16 which evidence a deterioration of Plaintiff’s condition. This matter will be remanded for 17 reconsideration of Dr. Montes’ opinions. 18 D. Residual Functional Capacity 19 The RFC measures the claimant’s capacity to engage in basic work activities. 20 Bowen v. New York, 476 U.S. 467, 471 (1986). The RFC is a determination of “the 21 most [an individual] can still do despite [his or her] limitations.” 20 C.F.R. § 22 404.1545(a); Treichler v. Comm’r, 775 F.3d 1090, 1097 (9th Cir. 2014). It is an 23 administrative finding, not a medical opinion. 20 C.F.R. § 404.1527(e). The ALJ’s RFC 24 assessment must be supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 25 1211, 1217 (9th Cir. 2005). 26 Plaintiff argues that the ALJ’s residual functional capacity (“RFC”) assessment 27 failed to account for his need for an assistive device, his cognitive deficits and other 28 opinions rendered by Dr. Montes. Because this matter is being remanded for 6 1 reconsideration of Dr. Montes’ opinions, which cover these areas, the court need not 2 address the issue of residual functional capacity separately. 3 IV. 4 ORDER 5 6 IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded for reconsideration of Dr. Montes’ opinions. 7 8 9 DATED: March 18, 2019 ALICIA G. ROSENBERG United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
