Kia Price v. Michael J. Astrue, No. 5:2010cv00971 - Document 16 (C.D. Cal. 2011)

Court Description: ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Magistrate Judge David T Bristow (am) Modified on 10/4/2011 (am).

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1 2 O 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 7 8 9 10 KIA PRICE, Plaintiff, 11 12 13 14 15 vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ______________________________ ) ) ) ) ) ) ) ) ) ) Case No. EDCV 10-0971-DTB ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS 16 Plaintiff filed a Complaint on July 7, 2010, seeking review of the Commissioner s 17 denial of her application for Supplemental Security Income Benefits under Title XVI of 18 the Social Security Act. In accordance with the Magistrate Judge s Case Management 19 Order, the parties filed a Joint Stipulation ( Jt. Stip. ) on March 10, 2011. Thus, this 20 matter now is ready for decision.1 21 /// 22 /// 23 /// 24 25 1 As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative 27 Record ( AR ), and the Joint Stipulation filed by the parties. In accordance with 28 Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 26 1 1 DISPUTED ISSUES 2 3 1. ( Grids ) instead of eliciting testimony from a vocational expert ( VE ). (Jt. Stip. 3.) 4 5 2. Whether the Administrative Law Judge ( ALJ ) properly considered the medical evidence as contained in the State agency consultant s opinion. (Jt. Stip. 8.) 6 7 Whether the ALJ properly relied on the Medical-Vocational Guidelines 3. Whether the ALJ properly determined the plaintiff s residual functional capacity ( RFC ). (Jt. Stip. 15.) 8 9 10 DISCUSSION I. Reversal is warranted based on the ALJ s mechanical application of the 11 Grids 12 Plaintiff asserts that the ALJ erroneously relied on the Grids and failed to obtain 13 VE testimony regarding her ability to perform jobs that exist in significant numbers in 14 the national economy in light of her significant non-exertional limitations. (Jt. Stip. 4.) 15 Plaintiff maintains that these limitations have significant vocational ramifications and 16 are very likely to erode the job base and, consequently, affect plaintiff s ability to 17 successfully perform jobs in the national economy. (Jt. Stip. 4-5.) The Court concurs 18 with plaintiff. 19 The ALJ bears the burden of demonstrating that plaintiff is not disabled because 20 she can perform other substantial gainful work in significant numbers in the national 21 economy. 20 C.F.R. § 416.920; Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 22 2006) (as amended). There are two ways for the Commissioner to meet the burden of 23 showing that there is other work in significant numbers in the national economy that 24 claimant can do: (1) [B]y the testimony of a vocational expert, or (2) by reference to the 25 Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. Lounsburry, 468 26 F.3d at 1114. Where a claimant suffers only from exertional limitations, the ALJ must 27 apply the Grids, which will direct a finding of disabled or not disabled. 20 C.F.R. pt. 28 404, subpt. P, app. 2, Rule 200.00(a); Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 2 1 1989). The Grids, however, may be used in lieu of taking VE testimony only where they 2 completely and accurately represent a claimant s limitations. Tackett v. Apfel, 180 3 F.3d 1094, 1101 (9th Cir. 1999); see Lounsburry, 468 F.3d at 1115 (quoting Tackett, 180 4 F.3d at 1103); Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985). When they do not 5 completely describe the claimant s abilities and limitations, the Grids are inapplicable 6 and the ALJ must elicit the testimony of a VE. Burkhart v. Bowen, 856 F.2d 1335, 1340 7 (9th Cir. 1988.) Examples of non-exertional limitations where use of the Grids may be 8 inappropriate include, inter alia, poor vision, see Tackett, 180 F.3d at 1101-02; pain, see 9 also Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); and mental, sensory, 10 postural, manipulative, or environmental (e.g., inability to tolerate dust or fumes) 11 limitations. Burkhart, 856 F.2d at 1340-41 (quoting Desrosiers v. Secretary of Health 12 and Human Services, 846 F.2d 573, 579 (9th Cir. 1988)). Similarly, if a claimant has 13 non-exertional limitations that significantly limit her range of work, the use of the 14 Grids in determining disability is inappropriate and VE testimony must be taken. 15 Tackett, 180 F.3d at 1102; see also Burkhart, 856 F.2d at 1340 ( When a claimant s non- 16 exertional limitations are sufficiently severe so as to significantly limit the range of work 17 permitted by the claimant s exertional limitations, the grids are inapplicable. ) (internal 18 quotations omitted). However, the ALJ may rely on the Grids even when a claimant has 19 combined exertional and non-exertional limitations if the non-exertional limitations are 20 not sufficiently severe so as to impact the range of work permitted by the claimant s 21 exertional capabilities. See Hoopai v. Astrue, 499 F.3d 1071, 1075-76 (9th Cir. 2007). 22 The ALJ found that plaintiff has the RFC to perform a full range of work at all 23 exertional levels but with the following non-exertional limitations: [M]ild limitation of 24 daily activities, mild to moderate difficulties in social functioning and in the ability to 25 maintain concentration, persistence or pace, and preclusion from work requiring acute 26 hearing. (AR 12.) Thus, he found that plaintiff had no exertional limitations but 27 multiple mild and moderate non-exertional limitations. The ALJ concluded that there 28 are jobs that exist in significant numbers in the national economy that plaintiff can 3 1 perform based on her age, education, work experience and RFC and that plaintiff can 2 easily perform jobs such as maid, hospital or industrial cleaner, assembler, packer or 3 bundler. (AR 14-15.) The ALJ consequently found that plaintiff is not disabled 4 under the framework of the Grids. (AR 15.) In so concluding, however, the ALJ failed 5 to account for the moderate limitations in understanding and memory, sustained 6 concentration and persistence and social interaction that Dr. Gregg found to exist and 7 subsequent conclusion that plaintiff is limited to performing simple repetitive tasks in 8 a non-public setting. (AR 245-47). Moreover, the ALJ failed to account for Dr. Goral s 9 conclusion that plaintiff must avoid jobs in which acute hearing is necessary [in order] 10 to avoid hazardous situations. (AR 224). 11 Given these significant non-exertional limitations, it was improper for the ALJ to 12 rely solely on the Grids. Although the ALJ acknowledged claimant s ability to perform 13 work at all exertional levels has been compromised by non-exertional limitations, he 14 failed to explain why the Grids mandate that plaintiff be found not disabled in light of 15 such limitations. (AR 15.) This constitutes error. See Jones, 760 F.2d at 998. Since the 16 ALJ neither elicited testimony from a VE nor adequately explained how these limitations 17 have little or no effect on the occupational base of unskilled work at all exertional 18 levels, the ALJ has not met his burden. (AR 15.) The Court concurs with plaintiff that 19 the ALJ erred by basing his nondisability determination on a mechanical application of 20 the Grids without taking testimony from a VE to determine whether plaintiff could 21 perform the work. 22 ( [W]here, as here, a claimant s nonexertional limitations are in themselves enough to 23 limit his range of work, the grids do not apply, and the testimony of the vocational expert 24 is required to identify specific jobs within th claimant s abilities. ) (citation omitted); see 25 also Cooper, 880 F.2d at 1155; Burkhart, 856 F.2d at 1340; Cuevas v. Apfel, 1999 WL 26 76789, *4 (N.D. Cal.); Wilson v. Chater, 1996 WL 400974, *3 (N.D. Cal.). 27 /// 28 /// See Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988) 4 1 II. Reversal is warranted based on the ALJ s failure to properly consider the 2 medical evidence as contained in the State agency consultant s opinion. 3 Plaintiff asserts that the ALJ failed to properly consider the opinion of State 4 agency consultant Kevan D. Gregg, M.D. (Jt. Stip. 9.) Specifically, plaintiff asserts that 5 the ALJ failed to consider Dr. Gregg s conclusion that plaintiff is capable of performing 6 simple repetitive tasks in a non-public setting and did not state whether he accepted or 7 rejected Dr. Gregg s opined limitations for plaintiff. (Jt. Stip. 9-10.) plaintiff also 8 maintains that the ALJ erred by not explaining the weight he afforded to Dr. Gregg s 9 opinion. (Jt. Stip 12.) 10 In evaluating medical opinions, the Ninth Circuit distinguishes among three types 11 of physicians: (1) Treating physicians (who examine and treat), (2) examining physicians 12 (who examine but do not treat), and (3) non-examining physicians (who neither examine 13 or treat). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). Generally, 14 the opinion of a treating physician is given more weight than the opinion of a non- 15 treating physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). The regulations 16 state that the ALJ is not bound by the findings made by a State agency medical or 17 psychological consultant. 20 C.F.R. § 416.927(f)(2)(i). However, because these agency 18 consultants are highly qualified and are also experts in Social Security disability, the 19 regulations provide that the ALJ must consider the findings from a State agency 20 consultant. Id. In addition, the ALJ must explain the weight given to the State agency 21 physician s opinion in his opinion, as the ALJ must do for the opinion of a treating or 22 nontreating source, unless the treating physician s opinion is given controlling weight. 23 20 C.F.R. § 416.927(f)(2)(ii). Social Security Ruling2 ( SSR ) 96-6p also provides that 24 25 2 26 27 28 The Commissioner issues Social Security Rulings [( SSRs )] to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are 5 1 the ALJ must treat the findings of fact made by a State agency physician as expert 2 opinion evidence. SSR 96-6p, 1996 WL 374180, at * 1. 3 On August 29, 2006, Dr. Gregg completed a Psychiatric Review Technique and 4 Mental Residual Functional Capacity Assessment of plaintiff. (AR 234-47.) Dr. 5 Gregg opined that plaintiff had moderate difficulties in the areas of understanding and 6 memory, sustained concentration and persistence, and social interaction. (AR 245-46.) 7 Specifically, Dr. Gregg found that plaintiff was moderately limited in the ability to 8 understand, remember and carry out detailed instructions, to work in coordination or 9 proximity to others without being distracted by them, to complete a normal workday and 10 work week without interruptions from psychologically based symptoms and to perform 11 at a consistent pace without an unreasonable number and length of rest periods, to 12 interact appropriately with the general public, and to get along with coworkers or peers 13 without distracting them or exhibiting behavioral extremes. (Id.) Dr. Gregg concluded 14 that plaintiff was capable of performing simple repetitive tasks in a non-public setting. 15 (AR 247.) 16 The Court concludes that the ALJ did not adequately address or reject Dr. Gregg s 17 opinion. While the ALJ acknowledged certain aspects of his objective findings, even 18 noting that Dr. Gregg concluded that plaintiff had some moderate limitations, the ALJ s 19 RFC assessment did not account for all of the limitations imposed by Dr. Gregg. (See 20 AR 12-13.) While the ALJ is not bound by the findings made by a State agency 21 physician, he may not ignore the opinion and must explain the weight given to the 22 opinion in his decision. See SSR 96-6p, 1996 WL 374180, at *1; 20 C.F.R. § 23 416.927(f). Here, the ALJ did not explain the weight he afforded to Dr. Gregg s opinion, 24 particularly with respect to the physician s findings that plaintiff was moderately limited 25 in understanding and memory and in her ability to maintain sustained concentration and 26 persistence. (See AR12-13.) The ALJ s RFC assessment did not include any functional 27 28 inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001) (internal citations omitted). 6 1 limitations with regard to plaintiff s inability to work in proximity or coordination with 2 others without being distracted by them or to get along with coworkers or peers without 3 exhibiting behavioral extremes, and he concluded that plaintiff only had mild to 4 moderate difficulties in social functioning and in the ability to maintain concentration, 5 persistence or pace . . . . (AR 12.) This finding seems to be less restrictive than the 6 physician s conclusion, but the ALJ did not explain whether he rejected this opinion nor 7 the weight he afforded to the opinion. Furthermore, the ALJ did not acknowledge, let 8 alone include in his RFC assessment, Dr. Gregg s conclusion that plaintiff could only 9 perform simple repetitive tasks in a non-public setting. (Id.) In his explanation of his 10 RFC, the ALJ states that plaintiff s limitations would not precluded [sic] unskilled, 11 entry-level work at any exertional level; however, he does not provide any explanation 12 for this finding and did not include the words unskilled or entry-level within the 13 RFC assessment itself. (See AR 12, 14.) 14 As such, the ALJ apparently implicitly rejected Dr. Gregg s findings. This 15 constitutes error. See SSR 96-6p, 1996 WL 374180, at *1; 20 C.F.R. §416.927(f). The 16 ALJ s failure to expressly explain why he apparently rejected this opinion prevents 17 meaningful judicial review, and thus, requires remand so that the ALJ can properly 18 consider Dr. Gregg s findings. See Cotter v. Harris, 642 F.2d 700, 706-07 (3rd Cir. 19 1981) ( Since it is apparent that the ALJ cannot reject evidence for no reason or for the 20 wrong reason, an explanation from the ALJ of the reason why probative evidence has 21 been rejected is required so that a reviewing court can determine whether the reasons for 22 rejection were improper. ) (internal citation omitted); see also Navarro v. Astrue, No. 23 CV 10-217-PLA, 2010 WL 5313439, at *4 (C.D. Cal. Dec. 16, 2010) (ALJ erred by 24 implicitly rejecting non-examining physician s opinion without providing reasons for 25 doing so). 26 The Commissioner implicitly concedes that the ALJ did not specifically discuss 27 Dr. Gregg s conclusion that plaintiff could perform simple repetitive tasks in a non- 28 public setting. (See Jt. Stip. 13.) The Commissioner also apparently does not dispute 7 1 that Dr. Gregg was competent to render the opinions reflected in his reports. To the 2 extent that the Commissioner relies on Vincent v. Heckler, 739 F.2d 1393 (9th Cir. 1984) 3 (per curiam) for the proposition that it was not error for the ALJ to disregard without 4 comment on this evaluation, the Court finds that the Commissioner s reliance is 5 misplaced. Vincent merely stands for the proposition that the ALJ need not discuss all 6 the evidence that has been presented, but the ALJ must explain why significant 7 probative evidence has been rejected. Id. at 1394-95 (citation omitted). Vincent does 8 not stand for the proposition that the ALJ may properly disregard without comment 9 significant and probative evidence from a person who is competent to provide it. See 10 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). While certain aspects of Dr. 11 Gregg s findings may be considered cumulative of other evidence, these findings were 12 not already incorporated into the ALJ s RFC assessment, i.e., the ALJ did not find 13 plaintiff limited to simple repetitive tasks in a non-public setting nor did he provide 14 reasons for rejecting Dr. Gregg s opinion that plaintiff was so limited. (See AR 12-14.) 15 Under the circumstances, Dr. Gregg s findings were significant and contained 16 probative evidence that should have been considered. Accordingly, the action must be 17 remanded to allow the ALJ to properly consider Dr. Gregg s findings. 18 19 III. The ALJ must reconsider his RFC assessment. 20 The Court concurs with plaintiff that the ALJ s assessment of plaintiff s RFC 21 cannot be reconciled with Dr. Gregg s opinion, that plaintiff s moderate impairments 22 precluded her from working in a field requiring other than simple repetitive tasks in a 23 non-public setting. As discussed, this opinion, along with Dr. Gregg s other opined 24 limitations for plaintiff, were not adequately accounted for in the RFC assessment. Since 25 the ALJ did not properly consider or reject Dr. Gregg s findings, the ALJ s RFC 26 assessment also is defective. See Valentine v. Comm r Soc. Sec. Admin., 574 F.3d 685, 27 690 (9th Cir. 2009); see also SSR 96-8p, 1996 WL 374184, at *7 ( The RFC assessment 28 must always consider and address medical source opinions. If the RFC assessment 8 1 conflicts with an opinion from a medical source, the adjudicator must explain why the 2 opinion was not adopted. ). Remand is warranted for the ALJ to reconsider plaintiff s 3 RFC once Dr. Gregg s findings have been fully evaluated as set forth herein, including 4 his finding that plaintiff is limited to performing simple repetitive tasks in a non-public 5 setting and is moderately limited in several areas related to understanding and memory 6 and social interaction. Since remand is necessary to reconsider the RFC determination 7 based on the ALJ s failure to consider Dr. Gregg s findings, it is unnecessary for the 8 Court to address plaintiff s specific contentions regarding this issue. 9 10 CONCLUSION AND ORDER 11 The law is well established that the decision whether to remand for further 12 proceedings or simply to award benefits is within the discretion of the Court. See, e.g., 13 Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 14 599, 603 (9th Cir. 1989) (as amended); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 15 1981). Remand is warranted where additional administrative proceedings could remedy 16 defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); 17 Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where no 18 useful purpose would be served by further administrative proceedings, Benecke v. 19 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); where the record has been fully developed, 20 Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would 21 unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th 22 Cir. 1985) (per curiam) (as amended). 23 This is not an instance where no useful purpose would be served by further 24 administrative proceedings or where the record has been fully developed. Rather, this 25 is an instance where additional administrative proceedings could remedy the defects in 26 the ALJ s decision. 27 /// 28 /// 9 1 Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS ORDERED 2 that Judgment be entered reversing the decision of the Commissioner of Social Security 3 and remanding this matter for further administrative proceedings.3 4 5 DATED: October 4, 2011 6 7 DAVID T. BRISTOW 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 3 It is not the Court s intent to limit the scope of the remand. 10

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