George Simmons v. Kilolo Kijakazi, No. 2:2020cv10257 - Document 22 (C.D. Cal. 2022)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish, For the reasons discussed below, the Court finds that this matter should be remanded. [See document for further details.] (es)
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George Simmons v. Kilolo Kijakazi Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 GEORGE S.,1 11 Case No. 2:20-cv-10257-GJS Plaintiff 12 v. 13 KILOLO KIJAKAJI, Acting Commissioner of Social Security,2 14 15 MEMORANDUM OPINION AND ORDER Defendant. 16 17 I. PROCEDURAL HISTORY 18 Plaintiff George S. (“Plaintiff”) filed a complaint seeking review of the 19 decision of the Commissioner of Social Security denying his applications for 20 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 21 The parties filed consents to proceed before the undersigned United States 22 Magistrate Judge [Dkts. 11 and 16] and briefs [Dkt. 15 (“Pl. Br.”), Dkt. 20 (“Def. 23 24 25 1 26 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party in this case. 27 2 28 Kilolo Kijakazi, the Acting Commissioner of Social Security, is substituted as defendant for Andrew Saul, former Commissioner of Social Security. See Fed. R. Civ. P. 25(d). Dockets.Justia.com 1 Br.”), Dkt 21 (“Reply”)] addressing disputed issues in the case. The matter is now 2 ready for decision. For the reasons discussed below, the Court finds that this matter 3 should be remanded. 4 5 II. ADMINISTRATIVE DECISION UNDER REVIEW 6 Plaintiff filed an application for DIB in April 2016, alleging disability 7 commencing on April 1, 2015. [Dkt. 14, Administrative Record (“AR”) 14, 268- 8 69.] Plaintiff’s application was denied at the initial level of review and on 9 reconsideration. [AR 14, 200-05, 207-12.] In May 2018, Plaintiff filed an 10 application for SSI. [AR at 14.] A video hearing was held before Administrative 11 Law Judge Laura Fernandez (“the ALJ”) on August 15, 2018. [AR 14, 132-63.] 12 On December 31, 2018, the ALJ issued an unfavorable decision applying the 13 five-step sequential evaluation process for assessing disability. [AR 15-26]; see 20 14 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1). At step one, the ALJ determined 15 that Plaintiff met the insured status requirements through December 31, 2020, and 16 has not engaged in substantial gainful activity (“SGA”) since the alleged onset date. 17 [AR 16.] At step two, the ALJ determined that Plaintiff has the following severe 18 impairments: degenerative disc disease of the lumbar and cervical spine; 19 osteoarthritis; Barrett’s esophagus; COPD; obstructive sleep apnea; major 20 depressive disorder; and obesity. [AR 16.] At step three, the ALJ determined that 21 Plaintiff does not have an impairment or combination of impairments that meets or 22 medically equals the severity of one of the impairments listed in Appendix I of the 23 Regulations. [AR 17]; see 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ found that 24 Plaintiff has the residual functional capacity (“RFC”) to perform light work, as 25 defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), but needs a sit/stand option and is 26 limited to occasional postural activity, frequent balancing, occasional exposure to 27 pulmonary irritants and extreme cold and heat; and simple routine tasks with 28 occasional contact with supervisors, the public, and co-workers. [AR 19.] At step 2 1 four, the ALJ determined that Plaintiff is not able to perform any past relevant work. 2 [AR 22.] At step five, based on the vocational expert’s testimony, the ALJ found 3 that Plaintiff could perform other jobs existing in significant numbers in the national 4 economy, including representative jobs such as photocopy machine operator, 5 mailroom clerk, and assembler small products. [AR 23-24.] Based on all of these 6 findings, the ALJ found Plaintiff not disabled through the date of the decision. [AR 7 24.] 8 9 10 11 The Appeals Council denied review of the ALJ’s decision on December 6, 2019. [AR 30-33.] This action followed. Plaintiff raises the following issues challenging the ALJ’s findings and determination of non-disability: 12 1. The ALJ improperly evaluated Plaintiff’s RFC. [Pl. Br. at 2-15.] 13 2. The ALJ and the Appeals Council failed to properly assess and 14 reject the opinions of Plaintiff’s treating and examining sources. [Pl. Br. at 15 15-16.] 3. The ALJ improperly rejected Plaintiff’s testimony. [Pl. Br. at 16- 16 17 20.] 18 The Commissioner asserts that the ALJ’s decision should be affirmed, or in 19 the alternative, remanded for further development of the record if the Court finds 20 error in the ALJ erred. [Def. Br. at 1-19.] 21 22 23 III. GOVERNING STANDARD Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 24 determine if: (1) the Commissioner’s findings are supported by substantial 25 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 26 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 27 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence is 28 more than a mere scintilla but less than a preponderance; it is such relevant evidence 3 1 as a reasonable mind might accept as adequate to support a conclusion.” Gutierrez 2 v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal quotation 3 marks and citation omitted). 4 The Court will uphold the Commissioner’s decision when “the evidence is 5 susceptible to more than one rational interpretation.” See Molina v. Astrue, 674 6 F.3d 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons 7 stated by the ALJ in his decision “and may not affirm the ALJ on a ground upon 8 which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The 9 Court will not reverse the Commissioner’s decision if it is based on harmless error, 10 which exists if the error is “inconsequential to the ultimate nondisability 11 determination, or if despite the legal error, the agency’s path may reasonably be 12 discerned.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal 13 quotation marks and citations omitted). 14 15 IV. DISCUSSION 16 Plaintiff contends the ALJ erred in failing to incorporate all of Plaintiff’s 17 mental and physical limitations in Plaintiff’s RFC. [Pl. Br. at 2-15.] The Court 18 finds that the ALJ did not give adequate consideration to several moderate 19 limitations in mental functioning identified by the consultative psychiatric examiner, 20 Dr. Gary Bartell. 21 A. Applicable Law 22 The RFC is “the most [one] can still do despite [his or her] limitations.” 20 23 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The RFC must consider all of the 24 claimant’s impairments, including those that are not severe. See C.F.R. §§ 25 404.1545(a)(2), 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. “In 26 determining a claimant’s RFC, an ALJ must consider all relevant evidence in the 27 record such as medical records, lay evidence and the effects of symptoms, including 28 pain, that are reasonably attributed to a medically determinable impairment.” 4 1 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006); see also 20 C.F.R. 2 §§ 404.1545(a)(3), 416.945(a)(3); SSR 96-8p. 3 B. Plaintiff’s Mental Limitations 4 The ALJ assigned “great weight” to the opinion of the examining psychiatrist, 5 Dr. Gary Bartell. [AR at 16, 21, 556-559.] After completing a comprehensive 6 psychiatric evaluation, Dr. Bartell diagnosed Plaintiff with adjustment disorder with 7 depressed mood and concluded that Plaintiff’s psychiatric condition “moderately 8 affects his ability to be employed.” [AR 559.] Dr. Bartell assessed Plaintiff with 9 mild limitations in performing “some simple and repetitive tasks” and moderate 10 limitations in the following areas: (1) performing detailed and complex instructions; 11 (2) accepting instructions from supervisors; (3) interacting with co-workers and the 12 public; (4) performing work activities consistently without special instruction; (5) 13 maintaining regular attendance at the workplace; (6) completing a normal workday 14 or without interruptions; (7) and dealing with the usual stress encountered in the 15 workplace. [AR 559.] 16 Plaintiff contends that despite the ALJ purporting to credit Dr. Bartell’s 17 opinion, the ALJ’s assessment of Plaintiff’s RFC assessment fails to fully reflect Dr. 18 Bartell’s findings regarding moderate limitations in mental functioning. [Pl. Br. at 19 4-9.] Specifically, Plaintiff asserts that the ALJ’s finding that Plaintiff could 20 perform a range of light work, “limited to simple routine tasks with occasional 21 contact with supervisors, the public and co-workers,” fails to account for the 22 moderate restrictions identified by Dr. Bartell in the following areas: performing 23 work activities consistently without special instruction; maintaining regular 24 attendance at the workplace; completing a normal workday or without interruptions; 25 and dealing with the usual stress encountered in the workplace. [Pl. Br. at 4-5 26 (citing AR 559).] 27 28 In response, Defendant argues that the ALJ “considered the totality of the objective evidence and opinions when she translated Dr. Bartell’s moderate mental 5 1 limitations into an RFC for simple routine tasks with occasional contact with 2 supervisors, coworkers, and the public.” [Def. Br. at 5.] Defendant relies on 3 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008), in which the Ninth 4 Circuit held that a limitation to simple tasks may, in some circumstances, adequately 5 account for moderate limitations in concentration, persistence, and pace. See id. at 6 1171-75. In Stubbs-Danielson, the Ninth Circuit determined that the ALJ did not err 7 when he neither adopted, nor explained his rationale for discounting a treating 8 physician’s opinion that the plaintiff was “moderately limited in her ability to 9 perform at a consistent pace” because the reviewing physician had assessed the 10 same limitation (“slow pace” in thinking and actions) but concluded that the plaintiff 11 retained the ability to carry out simple tasks despite this deficit. See id. at 1171, 12 1173 (finding “[the treating physician] did not assess whether [the plaintiff] could 13 perform unskilled work on a sustained basis. [The reviewing physician’s] report did. 14 [The reviewing physician’s] report, which also identified ‘a slow pace, both in 15 thinking & actions’ and several moderate limitations in other mental areas, 16 ultimately concluded [the plaintiff] retained the ability to ‘carry out simple tasks.’”). 17 The Ninth Circuit explained that the ALJ appropriately translated the treating 18 doctor’s opinion that the claimant had “slow pace” and limitations in “attention, 19 concentration, and adaption” into the “concrete” restriction identified by the 20 reviewing physician, a restriction to “simple tasks.” Id. at 1173-74. 21 Defendant’s reliance on Stubbs-Danielson is misplaced. While Dr. Bartell 22 found that Plaintiff was mildly impaired in the ability to perform some simple 23 repetitive tasks, his opinion also establishes, as the ALJ accepted, that Plaintiff was 24 moderately limited in maintaining regular attendance, completing a normal workday 25 and dealing with stress in the workplace. [AR 18, 21, 559.] Stubbs-Danielson did 26 not address the extent to which a limitation to simple routine tasks accounts for 27 these “concrete” restrictions identified by Dr. Bartell. See, e.g., Ferguson v. 28 Comm’r of Soc. Sec., No. 1:18-CV-01585-EPG, 2019 WL 6341034, at *6 (E.D. Cal. 6 1 Nov. 27, 2019) (“[E]ven under the Stubbs-Danielson analysis, the ALJ’s RFC fails 2 to account for specific concrete work restrictions given by the doctors, including … 3 ‘The claimant is not able to perform work activities on a consistent basis without 4 special or additional instruction,’ and ‘The claimant is not able to deal with the usual 5 stress encountered in a competitive work place.’ These are concrete restrictions, not 6 statements about mental function generally.”). Stubbs-Danielson, therefore, is 7 inapposite. See, e.g., Harrell v. Kijakazi, No. 1:20-CV-00614-GSA, 2021 WL 8 4429416, at *5-6 (E.D. Cal. Sept. 27, 2021) (collecting cases and explaining there is 9 no basis to extend the holding in Stubbs-Danielson to find that an RFC limitation to 10 simple/routine tasks accounts for moderate limitations in handling work related 11 stress, social interactions, and the ability to complete a normal workday and 12 maintain regular attendance); see also Christopher G. v. Saul, No. 2:19-CV-06150- 13 AFM, 2020 WL 2079972, at *6 (C.D. Cal. Apr. 30, 2020) (an RFC to perform work 14 involving simple, routine tasks with limited public and co-worker interaction does 15 not “address moderate limitations in performing activities within a schedule, 16 maintaining regular attendance, and being punctual within customary tolerances”); 17 Brink v. Comm’r Soc. Sec. Admin., 343 F. App’x 211, 212 (9th Cir. 2009) (finding 18 that the ALJ erred by accepting medical evidence that a claimant had “difficulty 19 maintaining concentration, persistence, or pace,” but failing to include such 20 limitations in the hypothetical question posed to the VE).34 21 22 23 24 25 26 27 28 3 The Court notes that although statements in unpublished Ninth Circuit opinions “may prove useful[] as examples of the applications of settled legal principles,” the Ninth Circuit has cautioned lower courts not to rely heavily on such memorandum dispositions particularly as to issues of law. Grimm v. City of Portland, 971 F.3d 1060, 1067 (9th Cir. 2020) (“a nonprecedential disposition is not appropriately used ... as the pivotal basis for a legal ruling by a district court”). 4 The other cases Defendant cites, apart from not being controlling precedent, do not support her argument. For example, Defendant cites Lacroix v. Barnhart, 465 F.3d 881, 888 (8th Cir. 2006) for the proposition that “moderate limitations in 7 1 Defendant further argues that the record lacks “medical opinions advocating 2 more restrictive concrete limitations beyond that already present in the RFC” and 3 “corroborating objective evidence supporting additional mental limitations.” [Def. 4 Br. at 5.] Defendant notes that Plaintiff did not receive ongoing mental health 5 treatment, the medical record reflected “benign mental status findings,” and the 6 State Agency psychological consultants found Plaintiff’s mental impairment not 7 severe. [Def. Br. at 5; AR 18, 21, 172-73, 189.] The ALJ, however, clearly stated 8 that Dr. Bartell’s opinion was accorded “great weight.” [AR at 18.] The ALJ had 9 an obligation, therefore, to account for the moderate limitations identified by Dr. 10 Bartell in the RFC. See Robbins, 466 F.3d at 883; Harrell, 2021 WL 4429416, at *4 11 (“having clearly stated that he was according [the consultative physician’s] opinion 12 great weight, the ALJ was under an obligation to account for the moderate 13 limitations the exam [the consultative physician] identified “irrespective of the 14 broader reasoning in support of the RFC”). While the ALJ was not required to 15 include in the RFC each limitation identified in the record, the ALJ could not simply 16 ignore the portions of Dr. Bartell’s opinion that were inconsistent with the assessed 17 18 19 20 21 22 23 24 25 26 27 28 responding to work pressures … means that the individual is still able to function satisfactorily.” [Def. Br. at 5.] However, Lacroix does not contain such a holding. In Lacroix, the examining doctor’s evaluation form defined “moderate,” as “still able to function satisfactorily” and the examining doctor found that despite moderate limitations in responding to work pressures, the claimant could still function satisfactorily. Lacroix, 465 F.3d at 888. Defendant’s suggestion that the evaluation form’s definition of the term “moderate” represents part of the holding in Lacroix is improper. Defendant also cites Edelbrock v. Comm’r of Soc. Sec., No. 1:12-CV-00514-JLT, 2013 WL 1622446, at *6 (E.D. Cal. Apr. 15, 2013) in which the district court found that “a limitation to simple tasks incorporates moderate limitations in several areas of cognitive functioning.” Unlike this case, however, limitations in the claimant’s ability to complete a normal workday and workweek, maintain regular attendance at work or deal with stress in the workplace were not considered in Edelbrock. 8 1 RFC. See Smolen v. Chater, 80 F.3d 1273, 1286 (9th Cir. 1996) (“By disregarding 2 [plaintiff’s treating physicians’] opinions and making contrary findings, [the ALJ] 3 effectively rejected them. His failure to offer reasons for doing so was legal error.”). Accordingly, the Court finds that the ALJ’s assessment of Plaintiff’s RFC is 4 5 not supported by substantial evidence. 6 7 V. CONCLUSION 8 The decision of whether to remand for further proceedings or order an 9 immediate award of benefits is within the district court’s discretion. See Harman v. 10 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be 11 served by further administrative proceedings, or where the record has been fully 12 developed, it is appropriate to exercise this discretion to direct an immediate award 13 of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings 14 turns upon the likely utility of such proceedings”). But when there are outstanding 15 issues that must be resolved before a determination of disability can be made, and it 16 is not clear from the record the ALJ would be required to find the claimant disabled 17 if all the evidence were properly evaluated, remand is appropriate. Id. A remand 18 for an immediate award of benefits is appropriate “only in rare circumstances.” 19 Brown-Hunter, 806 F.3d at 495 (internal quotation marks and citation omitted). The Court finds that remand is appropriate because the circumstances of this 20 21 case do not preclude the possibility that further administrative review of Dr. 22 Bartell’s opinion could remedy the ALJ’s errors. The Court declines to exercise its 23 discretion to remand for an immediate award of benefits. See INS v. Ventura, 537 24 U.S. 12, 16 (2002) (upon reversal of an administrative determination, the proper 25 course is remand for additional agency investigation or explanation, “except in rare 26 circumstances”); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless 27 the district court concludes that further administrative proceedings 28 /// 9 1 would serve no useful purpose, it may not remand with a direction to provide 2 benefits.”).5 3 4 IT IS ORDERED. 5 6 DATED: February 16, 2022 7 ___________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 As this matter is being remanded for further proceedings, the Court does not address the remaining issues raised by Plaintiff. [Pl. Br. at 9-20.] However, the ALJ may consider Plaintiff’s additional contentions of error when evaluating the evidence on remand. 10
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