Gregory Tobias v. Carolyn W. Colvin, No. 5:2013cv01703 - Document 23 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 GREGORY TOBIAS, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY, ) ) Defendant. ) ) ___________________________________) ED CV 13-1703-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on September 19, 2013, seeking review 26 of the Commissioner s denial of disability benefits. The parties 27 filed a consent to proceed before a United States Magistrate Judge on 28 November 4, 2013. Plaintiff filed a motion for summary judgment on 1 March 7, 2014. 2 May 8, 2014. 3 oral argument. Defendant filed a motion for summary judgment on The Court has taken the motions under submission without See L.R. 7-15; Minute Order, filed September 25, 2013. 4 5 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 6 7 Plaintiff asserts disability since January 29, 2010, based in 8 part on the allegedly deleterious mental effects of having suffered 9 strokes (Administrative Record ( A.R. ) 85-86, 92-95, 108-09). An 10 Administrative Law Judge ( ALJ ) found Plaintiff has the following 11 severe impairments: history of strokes; status-post mitral valve 12 replacement surgery; residual left side weakness; hypertension; and 13 ulcerative colitis (A.R. 19). 14 alleged mental problems are not severe (A.R. 20-21). 15 consider all of Plaintiff s impairments, the ALJ found: (1) Plaintiff 16 retains an unlimited mental residual functional capacity; 17 (2) Plaintiff retains a limited physical residual functional capacity 18 sufficient for a restricted range of light work (A.R. 22);1 and (3) a However, the ALJ found Plaintiff s Purporting to 19 1 20 21 22 23 24 25 26 27 28 Specifically, the ALJ found: [C]laimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently; he can stand and/or walk for six hours out of an eight-hour workday with customary breaks; he can sit for six hours out of an eight-hour workday with customary breaks; he is unlimited with respect to pushing and/or pulling, other than as indicated for lifting and/or carrying; the claimant can perform on a frequent basis reaching in all directions, handling and fingering with the left upper extremity; he is not limited in the use of the right upper extremity; the claimant must avoid extreme exposure to cold, heat, vibrations, dust, fumes, odors, gases, and areas of poor ventilation; he must avoid moving (continued...) 2 1 person with Plaintiff s residual functional capacity could perform 2 certain jobs identified by the vocational expert (A.R. 28; see A.R. 3 432-35). 4 5 In denying benefits, the ALJ rejected the opinion of consultative 6 psychological examiner, Dr. Douglas W. Larson, to the extent Dr. 7 Larson s opinion was inconsistent with the ALJ s residual functional 8 capacity determination (A.R. 20-27). 9 additional evidence submitted after the ALJ s adverse decision but 10 The Appeals Council considered denied review (A.R. 6-9 (referencing A.R. 306-405)). 11 12 STANDARD OF REVIEW 13 14 Under 42 U.S.C. section 405(g), this Court reviews the 15 Administration s decision to determine if: (1) the Administration s 16 findings are supported by substantial evidence; and (2) the 17 Administration used correct legal standards. 18 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 19 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 20 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 21 Substantial evidence is such relevant evidence as a reasonable mind 22 might accept as adequate to support a conclusion. 23 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); See Carmickle v. Richardson v. 24 25 26 27 28 1 (...continued) machinery and heights; the claimant can occasionally balance, stoop, kneel, crouch and crawl; and he can climb ramps or stairs, but he cannot climb ladders, ropes and scaffolds. (A.R. 22, 26-27). 3 1 see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 2 3 Where, as here, the Appeals Council considered additional 4 evidence but denied review, the additional evidence becomes part of 5 the record for purposes of the Court s analysis. 6 Commissioner, 682 F.3d at 1163 ( [W]hen the Appeals Council considers 7 new evidence in deciding whether to review a decision of the ALJ, that 8 evidence becomes part of the administrative record, which the district 9 court must consider when reviewing the Commissioner's final decision 10 for substantial evidence. ; expressly adopting Ramirez v. Shalala, 8 11 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 12 1228, 1231 (2011) (courts may consider evidence presented for the 13 first time to the Appeals Council to determine whether, in light of 14 the record as a whole, the ALJ's decision was supported by substantial 15 evidence and was free of legal error ); Penny v. Sullivan, 2 F.3d 953, 16 957 n.7 (9th Cir. 1993) ( the Appeals Council considered this 17 information and it became part of the record we are required to review 18 as a whole ); see generally 20 C.F.R. ยงยง 404.970(b), 416.1470(b). See Brewes v. 19 20 DISCUSSION 21 22 The Administration materially erred in connection with the 23 evaluation of Plaintiff s alleged mental problems. 24 appropriate. 25 /// 26 /// 27 /// 28 /// 4 Remand is 1 I. 2 Summary of the Medical Records Relevant to Plaintiff s Alleged Mental Problems 3 4 Consultative examining psychologist Dr. Larson prepared a report 5 dated June 29, 2010 (A.R. 168-74). Plaintiff complained of anxiety, 6 depression, and difficulty with memory and concentration (A.R. 168- 7 69). 8 because he had been having increasing difficulties with his memory 9 (A.R. 168-69). Plaintiff reportedly quit his job in January 2010 in part On examination, Plaintiff s affect was somewhat 10 bland, consistent with a history of stroke (A.R. 17-72). At times, 11 Plaintiff s word choices were a bit off, his [t]hought processes 12 were mildly slow, and memory results showed significant scatter from 13 the low average to average range (A.R. 170, 172). 14 testing indicated Plaintiff has average intelligence (Score 92), 15 with low average working memory (Score 80), and borderline 16 processing speed (Score 79) (A.R. 171). 17 with Plaintiff s history of stroke (A.R. 172). 18 testing indicated some significant memory deficits from his baseline 19 level and difficulty processing auditory materials at times (A.R. 20 172). 21 was very inconsistent with Plaintiff s work history, but consistent 22 with Plaintiff s history of stroke (A.R. 172-73). Full-scale IQ These results were consistent Plaintiff s memory Trails testing showed significant errors on Trails B, which 23 24 Dr. Larson diagnosed Plaintiff with a cognitive disorder, not 25 otherwise specified, and assigned a Global Assessment of Functioning 26 ( GAF ) score of 55 because of the consequences of Plaintiff s strokes 27 /// 28 /// 5 1 (A.R. 173).2 2 limitations in his ability to: (1) understand, remember and complete 3 simple commands; (2) interact appropriately with supervisors, co- 4 workers or the public; and (3) comply with job rules such as safety 5 and attendance (A.R. 174). 6 have moderate limitations in his ability to: (1) understand, remember 7 and complete complex tasks; (2) respond to changes in the normal 8 workplace setting; and (3) maintain persistence and pace in a normal 9 workplace setting (A.R. 174). Dr. Larson opined that Plaintiff would have mild According to Dr. Larson, Plaintiff would 10 11 Non-examining state agency physicians reviewed Dr. Larson s 12 report, but opined that Plaintiff: (1) is capable of understanding, 13 remembering, and carrying out simple one- and two-step tasks; (2) can 14 maintain concentration, persistence, and pace throughout a normal 15 workday/workweek as related to simple tasks; (3) is able to interact 16 adequately with coworkers and supervisors but may have difficulty 17 dealing with the demands of general public contact ; and (4) is able 18 to make adjustments and avoid hazards in the workplace (A.R. 182-83, 19 194, 196-98; see also A.R. 221-22). 20 Psychiatric Review Technique form dated July 16, 2010, indicated that 21 Plaintiff has a cognitive disorder, and would have mild restrictions A non-examining reviewer s 22 23 24 25 26 27 28 2 Clinicians use the GAF scale to report an individual s overall psychological functioning. The scale does not evaluate impairments caused by physical or environmental factors. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders ( DSM-IV-TR ) 34 (4th Ed. 2000 (Text Revision)). A GAF score of 51-60 indicates [m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. 6 1 in activities of daily living, moderate difficulties maintaining 2 social functioning, and moderate difficulties maintaining 3 concentration, persistence or pace (A.R. 185, 192). 4 records document that Plaintiff has a history of CVA 5 (cerebrovascular accident, i.e., stroke) in 2005 and 2007 (A.R. 159- 6 60). Other medical 7 8 II. Analysis 9 10 11 Social Security Ruling ( SSR ) 85-283 governs the evaluation of whether an alleged impairment is severe : 12 13 An impairment or combination of impairments is found not 14 severe . . . when medical evidence establishes only a 15 slight abnormality or a combination of slight abnormalities 16 which would have no more than a minimal effect on an 17 individual's ability to work . . . i.e., the person s 18 impairment(s) has no more than a minimal effect on his or 19 her physical or mental ability(ies) to perform basic work 20 activities. . . . 21 22 Great care should be exercised in applying the not severe 23 impairment concept. 24 determine clearly the effect of an impairment or combination 25 of impairments on the individual s ability to do basic work If an adjudicator is unable to 26 27 28 3 Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 7 1 activities, the sequential evaluation process should not end 2 with the not severe evaluation step. 3 4 If such a finding [of non-severity] is not clearly 5 established by medical evidence, however, adjudication must 6 continue through the sequential evaluation process. 7 85-28 at 22-23. SSR 8 9 See also Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (the 10 severity concept is a de minimis screening device to dispose of 11 groundless claims ); accord Webb v. Barnhart, 433 F.3d 683, 686-87 12 (9th Cir. 2005). 13 14 In the present case, the medical evidence does not clearly 15 establish [ ] the non-severity of Plaintiff's alleged mental 16 problems. 17 examining physician, appears to suggest that Plaintiff s alleged 18 mental problems cause more than minimal effects on Plaintiff s 19 mental ability to perform certain basic work activities. 20 not only found that Plaintiff has no severe mental impairment but also 21 found that Plaintiff retains an unlimited mental residual functional 22 capacity. 23 authorities cited above. Rather, the medical evidence, including the opinion of an Yet, the ALJ The ALJ s findings violated SSR 85-28 and the Ninth Circuit 24 25 The respect ordinarily owed to examining physicians opinions 26 buttresses the Court s conclusion that the ALJ erred. 27 an examining physician is . . . entitled to greater weight than the 28 opinion of a non-examining physician. 8 The opinion of Lester v. Chater, 81 F.3d 821, 1 830 (9th Cir. 1995); see also Tonapetyan v. Halter, 242 F.3d 1144, 2 1149 (9th Cir. 2001) (consultative examiner opinion s based on 3 independent examination of the claimant constitutes substantial 4 evidence). 5 Larson s opinion that Plaintiff has significant mental limitations. 6 Rather, the ALJ appears largely to have rejected Dr. Larson s opinion, 7 stating the following reasons for this rejection: (1) the absence of 8 evidence of treatment for mental health issues ; (2) Plaintiff s own 9 Adult Function Report, which purportedly showed that the claimant The ALJ does not appear to have given great weight4 to Dr. 10 enjoy [sic] a full range of activities of daily living ; 11 (3) generally unremarkable findings from mental status examinations; 12 and (4) the ALJ s purported observation that, during the hearing, 13 Plaintiff did not demonstrate or manifest any difficulty 14 concentrating (A.R. 20-22, 24). 15 supported by substantial evidence. These stated reasons are not 16 17 With regard to reason (1), the Ninth Circuit has observed that 18 it is a questionable practice to chastise one with a mental 19 impairment for the exercise of poor judgment in seeking 20 rehabilitation. 21 1996) (citations and quotations omitted). 22 in the present case, when the alleged mental impairments are the 23 result of a stroke, there may be no efficacious treatment to address 24 the impairments. 25 Cal. June 27, 2012) (observing there were no treatment records for 26 claimant s stroke most likely because any permanent effects of a Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. Perhaps more significantly See Trefcer v. Astrue, 2012 WL 2522147, at *4 (E.D. 27 4 28 The ALJ expressly gave only some weight to Dr. Larson s opinion (A.R. 21). 9 1 stroke would not be treatable ) (citing http://www.webmd.com/stroke/ 2 guide/stroke-treatment-overview). 3 impaired by deficits in Plaintiff s working memory and processing 4 speed. 5 benefit from vocational rehabilitation for other useful work that 6 would accommodate Plaintiff s limitations (A.R. 173-74). 7 Larson did not suggest any kind of treatment that might improve 8 Plaintiff s mental performance. 9 in the record suggesting that any effective treatment exists for See A.R. 170-73. Dr. Larson found that Plaintiff is Dr. Larson noted that Plaintiff might However, Dr. Indeed, there is no medical opinion 10 Plaintiff s reported memory and processing speed deficits. The 11 Administration cannot properly infer the nonexistence of the reported 12 deficits from a failure to obtain ineffective or nonexistent 13 treatment. 14 Cir. 2010) ( A claimant cannot be discredited for failing to pursue 15 non-conservative treatment options where none exist. ) See Lapierre-Gutt v. Astrue, 382 Fed. App x 662, 664 (9th 16 17 With regard to reason (2), the ALJ indicated that Plaintiff: 18 (1) could perform certain household chores, although Plaintiff 19 required more time than normal to perform these activities; (2) could 20 read, draw, watch television, use a computer and play dominoes; and 21 (3) reported no difficulty paying attention or implementing written 22 or spoken instructions (A.R. 24). 23 sometimes needs to be given spoken instructions two or three times 24 (A.R. 131). 25 not necessarily incompatible with Dr. Larson s opinion that Plaintiff 26 is mentally limited due to significant deficits in memory and 27 processing speed. 28 /// In fact, Plaintiff reported that he In any event, Plaintiff s reported daily activities are 10 1 With regard to reason (3), the ALJ s characterization of Dr. 2 Larson s findings on examination as generally unremarkable 3 constitutes a mischaracterization of the record. 4 found significant abnormalities. 5 exhibited significant memory deficits from his baseline, 6 borderline processing speed, difficulty processing auditory 7 materials at times, and significant errors in trails testing, all of 8 which were consistent with the effects of stroke. 9 (emphasis added)). In fact, Dr. Larson Dr. Larson found that Plaintiff (A.R. 170-73 An ALJ s material mischaracterization of the 10 record can warrant remand. See, e.g., Regennitter v. Commissioner, 11 166 F.3d 1294, 1297 (9th Cir. 1999). 12 13 Finally, with regard to reason (4), the ALJ s purported 14 observation that Plaintiff did not demonstrate or manifest any 15 difficulty concentrating during the hearing does not constitute 16 substantial evidence under the circumstances of this case. 17 reliance on his or her personal observations of a claimant at the 18 hearing has sometimes been condemned as sit and squirm 19 jurisprudence. 20 1985); but see Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) 21 ( Although this Court has disapproved of so-called sit and squirm 22 jurisprudence, the inclusion of the ALJ s personal observations does 23 not render the decision improper. ) (citations and internal quotations 24 omitted). 25 concern that the ALJ, who is not a medical expert, may substitute his 26 or her own lay judgment in the place of a medical diagnosis. 27 e.g., Graham v. Bowen, 786 F.2d 1113, 1115 (11th Cir. 1986) (ALJ 28 improperly substituted his own opinion based on observations at the An ALJ s See Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. Cases condemning sit and squirm jurisprudence express a 11 See, 1 hearing for the medical evidence presented); Van Horn v. Schweiker, 2 717 F.2d 871, 874 (3d Cir. 1983) (addressing the roundly condemned 3 sit and squirm method of deciding disability, and stating that an 4 ALJ is not free to set his own expertise against that of physicians 5 who present competent medical evidence ) (citations omitted); compare 6 Nyman v. Heckler, 779 F.2d 528, 531 & n.1 (9th Cir. 1985) (finding no 7 error where the ALJ s observation of [the claimant s] demeanor was 8 relevant to his credibility and was not offered or taken as a 9 substitute for medical diagnosis ). The reported fact that Plaintiff 10 appeared to the ALJ to be able to concentrate and respond timely to 11 questioning at the hearing is no substitute for the objective tests 12 Dr. Larson performed, and provides scant support for the ALJ s 13 ultimate conclusion that Plaintiff is not disabled. 14 15 The Court is unable to deem the above-discussed errors to have 16 been harmless. The residual functional capacity the ALJ adopted and 17 included in the hypothetical questioning of the vocational expert 18 assumed that Plaintiff has no mental limitations whatsoever. 19 22, 432-35. 20 be any jobs performable by a person having significant mental 21 limitations in combination with Plaintiff s significant physical 22 limitations. See A.R. The vocational expert did not testify whether there would See A.R. 432-39. 23 24 Because the circumstances of this case suggest that further 25 administrative review could remedy the ALJ s errors, remand is 26 appropriate. 27 generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 28 administrative determination, the proper course is remand for McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 12 1 additional agency investigation or explanation, except in rare 2 circumstances). 3 4 CONCLUSION 5 6 For all of the foregoing reasons,5 Plaintiff s and Defendant s 7 motions for summary judgment are denied and this matter is remanded 8 for further administrative action consistent with this Opinion. 9 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 DATED: May 30, 2014. 13 14 _______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 5 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 13
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