Angela Venise Boles v. Nancy A. Berryhill, No. 2:2018cv08196 - Document 22 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See Order for complete details) (afe)
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Angela Venise Boles v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 11 12 13 ANGELA VENISE BOLES, 14 Plaintiff, 15 16 vs. 17 ANDREW SAUL, Commissioner of the Social Security Administration,1 18 Defendant. 19 ) Case No. CV 18-8196-AS ) ) ) MEMORANDUM OPINION AND ) ) ORDER OF REMAND ) ) ) ) ) ) ) ) 20 21 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED 22 that this matter be remanded 23 consistent with this Opinion. 24 for further administrative action 25 26 27 28 1 Andrew Saul is now the Commissioner of the Social Security Administration and is substituted in for Acting Commissioner Nancy A. Berryhill in this case. See Fed.R.Civ.P. 25(d). Dockets.Justia.com 1 PROCEEDINGS 2 3 On September 21, 2018, Plaintiff filed a Complaint seeking review 4 of the denial of her application for Disability Insurance Benefits. 5 (Docket Entry No. 1). The parties have consented to proceed before the 6 undersigned United States Magistrate Judge. (Docket Entry Nos. 9-10). 7 On February 14, 2019, Defendant filed an Answer along with the 8 Administrative Record (“AR”). (Docket Entry Nos. 17-18). The parties 9 filed a Joint Stipulation (“Joint Stip.”) on June 11, 2019, setting 10 forth their respective positions regarding Plaintiff’s claims. (Docket 11 Entry No. 21). 12 13 The Court has taken this matter under submission without oral 14 argument. See C.D. Cal. L.R. 7-15. 15 16 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 17 18 On November 5, 2014, Plaintiff, formerly employed as a human 19 resource manager, buyer and receptionist (see AR 44, 47-48, 180, 194-98, 20 205, 242-45, 281), filed an application for Disability Insurance 21 Benefits, alleging an inability to work because of disabling condition 22 since January 31, 2014. (See AR 166-67). 23 24 On September 6, 2017, the Administrative Law Judge [“ALJ”], Susan 25 Hoffman, heard testimony from Plaintiff (represented by counsel) and 26 vocational expert (“VE”) Bud Lear. (See AR 36-70). On December 19, 27 2017, the ALJ issued a decision denying Plaintiff’s application. (See 28 AR 15-27). Applying the five-step sequential process, the ALJ found at step one that Plaintiff had not engaged in substantial gainful activity 2 1 since January 31, 2014, the alleged onset date. (AR 17). At step two, 2 the ALJ determined that Plaintiff had the following severe combination 3 of impairments: major depressive order with anxiety; history of retinal 4 detachment, status-post surgical repair (left eye); knee effusion 5 (left); obesity; and mild degenerative disc disease of the cervical 6 spine. (AR 17-18).2 At step three, the ALJ determined that Plaintiff did 7 not have an impairment or combination of impairments that met or 8 medically equaled the severity of any of the Listings enumerated in the 9 regulations.3 (AR 18-19). 10 11 The ALJ then determined that Plaintiff had the residual functional 12 capacity (“RFC”)4 to perform light work5 with the following limitations: 13 can never climb ladders, ropes or scaffolds; can no more than 14 occasionally perform all other postural activities; can never work 15 around unprotected heights or moving mechanical parts; and limited to 16 simple routine tasks but not at production-rate pace. (AR 20-25). At 17 step four, the ALJ determined that Plaintiff was not able to perform any 18 past relevant work. (AR 25-26). At step five, the ALJ, relying on the 19 testimony of the VE, found that Plaintiff could perform jobs existing in 20 21 22 2 The ALJ found that Plaintiff’s impairment of high myopia of the right eye was non-severe. (AR 18). 3 The ALJ specifically considered whether Plaintiff’s 23 impairments met the following listings: 1.02 (major dysfunction of joint 24 25 due to any cause), 1.04 (disorders of the spine), 12.04 (depressive bipolar and related disorders), and 12.06 (obsessive compulsive disorder). (AR 18-19). 4 A Residual Functional Capacity is what a claimant can still do See 20 C.F.R. § 404.1545(a)(1). 26 despite existing exertional and nonexertional limitations. 27 28 5 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). 3 1 significant numbers in the national economy. (AR 26-27). Accordingly, 2 the ALJ determined that Plaintiff was not under a disability as defined 3 by the Social Security Act, from January 31, 2014, through the date of 4 the decision. (AR 27). 5 6 The Appeals Council denied Plaintiff request for review of the 7 ALJ’s decision. (See AR 1-5). Plaintiff now seeks judicial review of 8 the ALJ’s decision, which stands as the final decision of the 9 Commissioner. 42 U.S.C. §§ 405(g), 1383(c). 10 11 STANDARD OF REVIEW 12 13 14 15 16 17 18 19 20 21 22 23 24 25 This Court reviews the Administration’s decision to determine if it is free of legal error and supported by substantial evidence. Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). See “Substantial evidence” is more than a mere scintilla, but less than a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine whether substantial evidence supports a finding, “a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner’s] conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)(internal quotation omitted). As a result, “[i]f the evidence can support either affirming or reversing the ALJ’s conclusion, [a court] may not substitute [its] judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 26 27 28 4 1 PLAINTIFF’S CONTENTIONS 2 3 4 5 6 7 Plaintiff alleges the ALJ erred in: (1) finding that Plaintiff could perform the occupation of mail clerk; (2) finding that Plaintiff could perform the occupation of garment folder; and (3) failing to properly evaluate the opinion of treating psychiatrist, Dr. Hernandez. (See Joint Stip. at 4-6, 10-21, 24-25). 8 9 DISCUSSION 10 11 12 13 14 15 After consideration of the record as a whole, the Court finds that Plaintiff’s third consideration. claim of error warrants a remand for further Since the Court is remanding the matter based on Plaintiff’s third claim of error, the Court will not address Plaintiff’s first and second claims of error. 16 17 18 A. The ALJ Failed to Properly Assess a Portion of the Opinion of Treating Psychiatrist, Fabian Hernandez, D.O. 19 20 21 22 23 Plaintiff asserts that the ALJ failed to provide any reason, or even specific and legitimate reasons, for rejecting the opinion of treating psychiatrist, Dr. Hernandez, concerning Plaintiff’s moderate limitation in the ability to make judgments on simple work-related 24 decisions. 25 properly evaluated Dr. Hernandez’s opinion in assessing Plaintiff’s RFC. 26 (See Joint Stip. at 21-24). (See Joint Stip. at 17-21). 27 28 5 Defendant asserts that the ALJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 An ALJ must take into account all medical opinions of record. C.F.R. § 404.1527(b). 20 Although a treating physician’s opinion is generally afforded the greatest weight in disability cases, it is not binding on an ALJ with respect to the existence of an impairment or the ultimate determination of disability. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician’s opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. 404.1527(b)-(d), 416.927(b)-(d). 20 C.F.R. §§ “Generally, a treating physician’s opinion carries more weight than an examining physician’s, and an examining physician’s opinion carries more weight than a reviewing physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see also Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 15 16 17 18 19 20 21 22 23 24 If a treating or examining doctor’s opinion is not contradicted by another doctor, the ALJ can reject the opinion only for “clear and convincing reasons.” Carmickle v. Commissioner, 533 F.3d 1155, 1164 (9th Cir. 2008); Lester v. Chater, 81 F.3d at 830 (9th Cir. 1995). If the treating or examining doctor’s opinion is contradicted by another doctor, the ALJ must provide “specific and legitimate reasons” for rejecting the opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); Lester v. Chater, supra. 25 26 Fabian Hernandez, D.O., a psychiatrist at the Los Angeles County 27 Department of Mental Health, treated Plaintiff from July 16, 2015 to 28 6 1 approximately November 10, 2016. (See AR 847, 747, 752-53, 756-57, 7602 63, 770-71, 78-79, 786-87, 792-93, 795-96, 801-02, 829-30). 3 4 Dr. Hernandez prepared a “Medical Source Statement of Ability to 5 Do Work-Activities (Mental)” dated October 26, 2016. (See AR 848-50). 6 Dr. Hernandez opined, inter alia, that Plaintiff has moderate 7 limitations (“There is more than a slight limitation in this area but 8 the individual is still able to function satisfactorily.”) in the [t]he 9 ability to make judgments on simple work-related decisions and in 10 understanding and remembering complex instructions, and that Plaintiff 11 has marked limitations (“There is a serious limitation in this area. 12 There is a substantial loss in the ability to effectively function.”) 13 in carrying out complex instructions and in “[t]he ability to make 14 judgments on complex work-related decisions.” (AR 848, bolded for 15 emphasis). 16 17 The ALJ addressed Dr. Hernandez’s opinion as follows: 18 19 With respect to the claimant’s ability to perform the 20 mental aspects of work, I give great weight to the October 21 2016 22 psychiatrist, 23 ability to make judgments on simple work-related decisions 24 and to understand and remember complex instructions, and 25 marked 26 instruction 27 decisions (Exhibit 17F). 28 approximately every two months since July 2015, and his opinion of Fabian that limitations and she in make Hernandez, had the D.O., moderate ability judgments on the claimant’s limitations to carry complex out in the complex work-related The doctor has seen the claimant 7 1 assessment is consistent with the treatment records (Exhibit 2 16 F, p. 114; 20F; see Exhibit 16F, pp. 37, 45, 53, 59, 62, 3 68, 96). 4 5 Dr. Hernandez’s opinion is also generally consistent 6 with, but more restrictive than, those of the state agency 7 medical consultant and the consultative psychiatrist, to 8 which 9 consistent with and supported by the clinical findings. . . I also give great weight, as they are largely 10 11 (AR 23-24). 12 Since the ALJ did not find that Dr. Hernandez’s opinion about 13 Plaintiff’s moderate limitation in “[t]he ability to make judgments on 14 simple work-related decisions” was contradicted by another physician’s 15 opinion, the issue is whether the ALJ provided “clear and convincing” 16 reasons for discrediting Dr. Hernandez’s opinions. See Trevizo v. 17 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017)(“To reject the [the] 18 uncontradicted opinion of a treating or examining doctor, an ALJ must 19 state clear and convincing reasons that are supported by substantial 20 evidence.”; citation omitted). 21 22 Although the ALJ claimed to give “great weight” to Dr. Hernandez’s 23 opinion, the ALJ appears not to have taken into account Dr. Hernandez’s 24 opinion that Plaintiff had a moderate limitation in her ability to make 25 judgments on simple work-related decisions –- a limitation which on 26 November 18, 2014 both Daniel Hoffman, M.D. and Jene E. Verchick, Psy.D. 27 also found (see AR 657 [“The ability to understand, remember, and carry 28 out instructions are affected by the impairment as follows: . . . 8 Make 1 judgments on simple work-related decisions - Moderate Impairment.”, 659 2 [same]) -- when determining Plaintiff’s RFC (see AR 20-25). See Walton 3 v. Colvin, 2015 WL 3649678, *21-*22 (D. Nev. June 11, 2015)(ALJ erred 4 in failing to properly reject or provide any reasons for rejecting the 5 treating physician’s opinion, in part, that the plaintiff had a moderate 6 limitation in the ability to make judgments on simple work-related 7 decisions); Lescoe v. Astrue, 2013 WL 100169, *2 (C.D. Cal. Jan. 8, 8 2013)(ALJ erred in failing to address the examining physician’s 9 uncontradicted finding that the plaintiff had a marked limitation in the 10 ability to make judgments on simple work-related decisions); see also 11 Richardson v. Colvin, 2016 WL 4487823, *5 (C.D. Cal. Aug. 23, 2016)(ALJ 12 erred in accepting an examining physician’s opinion that the claimant 13 had a moderate limitation in the ability to respond appropriately to 14 usual work situations and changes in a routine work setting but not 15 incorporating that limitation into the RFC); Sinohui v. Astrue, 2011 WL 16 1042333, *14 (C.D. Cal. March 18, 2011)(“In excluding from his RFC 17 determination [the physician]'s opinions that Plaintiff was moderately 18 limited in his ability to understand and remember detailed instructions, 19 in the ability to carry out detailed instructions, and in the ability 20 to interact appropriately with the general public, the ALJ implicitly 21 rejected those opinions without providing any reason for doing so. This 22 constitutes error.”).6 23 24 6 Although Defendant attempts to justify the ALJ’s decision based 25 on the ALJ’s consideration of the evidence in the record and on the ALJ’s reliance on the opinions of the examining psychiatrist and non- 26 examining State Agency reviewing physicians (see Joint Stip. at 23), the Court will not consider reasons for rejecting Dr. Hernandez’s opinion 27 that were not given by the ALJ in the decision. See Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001); SEC v. Chenery Corp., 332 US 194, 28 196 (1947). 9 1 Here, the ALJ failed to provide any reasons, let alone “clear and 2 convincing” reasons, for rejecting Dr. Hernandez’s opinion about 3 Plaintiff’s moderate limitation in her ability to make judgments on 4 simple work-related decisions. 5 6 Contrary to Defendant’s assertion (see Joint Stip. at 23-24), the 7 ALJ’s failure to properly reject Dr. Hernandez’s opinion concerning 8 Plaintiff’s moderate limitation in her ability to make judgments on 9 simple work-related decisions was not harmless error. Since the ALJ did 10 not provide reasons for rejecting that portion of Dr. Hernandez’s 11 opinion, the ALJ’s error cannot be deemed “inconsequential to the 12 ultimate nondisability determination.” See Stout v. Comm’r Soc. Sec. 13 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); Carmickle v. Comm’r Soc. 14 Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). 15 16 B. Remand Is Warranted 17 18 The decision whether to remand for further proceedings or order an 19 immediate award of benefits is within the district court’s discretion. 20 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 21 useful purpose would be served by further administrative proceedings, 22 or where the record has been fully developed, it is appropriate to 23 exercise this discretion to direct an immediate award of benefits. Id. 24 at 1179 (“[T]he decision of whether to remand for further proceedings 25 turns upon the likely utility of such proceedings.”). However, where, 26 as here, the circumstances of the case suggest that further 27 administrative review could remedy the Commissioner’s errors, remand is 28 10 1 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 2 Harman v. Apfel, 211 F.3d at 1179-81. 3 4 A remand is appropriate where, as here, the ALJ finds a physician’s 5 opinion credible but then fails to include or address material aspects 6 of that opinion in the RFC determination. See Bagby v. Commissioner, 7 606 Fed. Appx, 888, 890 (9th Cir. 2015). Because outstanding issues 8 must be resolved before a determination of disability can be made, and 9 “when the record as a whole creates serious doubt as to whether the 10 [Plaintiff] is, in fact, disabled within the meaning of the Social 11 Security Act,” further administrative proceedings would serve a useful 12 purpose and remedy defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th 13 Cir. 2014)(citations omitted).7 14 // 15 // 16 // 17 18 19 20 21 22 23 7 The Court has not reached any other issue raised by Plaintiff 24 except to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 25 “[E]valuation of the record as a whole creates serious doubt that Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995, Accordingly, the Court declines to rule on Plaintiff’s claims regarding the ALJ’s errors in finding that Plaintiff could perform the occupation of mail clerk and garment folder (see Joint Stip. at 4-6, 10-17). Because this matter is being remanded for further consideration, these issues should also be considered on remand. 26 1021 (2014). 27 28 11 1 ORDER 2 3 For the foregoing reasons, the decision of the Commissioner is 4 reversed, and the matter is remanded for further proceedings pursuant 5 to Sentence 4 of 42 U.S.C. § 405(g). 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: August 21, 2019 10 11 12 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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