Lesly Lynnene Lewis v. Carolyn W. Colvin, No. 5:2016cv01754 - Document 25 (C.D. Cal. 2017)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish Re Complaint. For all of the foregoing reasons, IT IS ORDERED that: (1) the decision of the Commissioner is REVERSED and this matter REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Memorandum Opinion and Order; and (2) Judgment be entered in favor of Plaintiff. (ec)
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Lesly Lynnene Lewis v. Carolyn W. Colvin Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Plaintiff 12 13 14 15 Case No. 5:16-cv-01754-GJS LESLY LYNNENE LEWIS, MEMORANDUM OPINION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 I. 17 18 PROCEDURAL HISTORY Plaintiff Lesly Lynnene Lewis (“Plaintiff”) filed a complaint seeking review 19 of Defendant Commissioner of Social Security’s (“Commissioner”) denial of her 20 application for Disability Insurance Benefits (“DIB”). The parties filed consents to 21 proceed before the undersigned United States Magistrate Judge [Dkts. 10, 11] and 22 briefs addressing disputed issues in the case [Dkt. 20 (“Pltf.’s Br.”); Dkt. 23 (“Def.’s 23 Br.”), Dkt. 24 (“Pltf.’s Statement of No Reply”)]. The Court has taken the parties’ 24 briefing under submission without oral argument. For the reasons discussed below, 25 the Court finds that this matter should be remanded for further proceedings. 26 II. ADMINISTRATIVE DECISION UNDER REVIEW 27 On July 1, 2011, Plaintiff filed an application for DIB, alleging that she 28 became disabled as of August 1, 2010. [Dkt. 14, Administrative Record (“AR”) 10.] Dockets.Justia.com 1 The Commissioner denied her initial claim for benefits in October 2011 and then 2 denied her claim upon reconsideration in May 2012. [Id.] On January 9, 2013, a 3 hearing was held before Administrative Law Judge (“ALJ”) James P. Nguyen. [AR 4 27-46.] On January 31, 2013, the ALJ issued a decision denying Plaintiff’s request 5 for benefits. [AR 7-23.] Plaintiff requested review from the Appeals Council, but 6 the Appeals Council denied her request for review on April 28, 2014. [AR 1-3.] Plaintiff filed a civil action on July 7, 2014. This Court remanded the case to 7 8 the Commissioner for further proceedings on July 9, 2015. [AR 394-407 (Lewis v. 9 Colvin, 5:14-cv-01326-GJS, Dkt. 27).] Subsequently, on February 23, 2016, a 10 second hearing was held before ALJ Dante M. Alegre. [AR 358-389.] On April 9, 11 2016, the ALJ issued a decision again denying Plaintiff’s request for benefits. [AR 12 449-467.] Plaintiff now seeks review directly from this Court. See 20 C.F.R. § 13 404.984. Applying the five-step sequential evaluation process, the ALJ found that 14 15 Plaintiff was not disabled. See 20 C.F.R. §§ 404.1520(b)-(g)(1). At step one, the 16 ALJ concluded that Plaintiff had not engaged in substantial gainful activity since the 17 alleged onset date of August 1, 2010 through her date last insured of December 31, 18 2015. [AR 454.] At step two, the ALJ found that Plaintiff suffered from the 19 following severe impairments: obesity; migraines; carpal tunnel syndrome, right; 20 peripheral neuropathy; obstructive sleep apnea (OSA); bipolar disorder; and 21 depressive disorder with anxiety. [Id. (citing 20 C.F.R. § 404.1520(c).] Next, the 22 ALJ determined that Plaintiff did not have an impairment or combination of 23 impairments that meets or medically equals the severity of one of the listed 24 impairments. [AR 455 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1; 20 C.F.R. 25 §§ 404.1520(d), 404.1525, 404.1526).] 26 /// 27 /// 28 2 The ALJ found that Plaintiff had the following residual functional capacity 1 2 (RFC): [L]ight work as defined in 20 CFR 404.1567(b). Specifically, the claimant can lift/carry twenty pounds occasionally and ten pounds frequently; stand/walk for six hours out of an eight hour workday; sit for six hours out of an eight hour workday; occasionally climb ramps and stairs; never climb ladders, ropes, and scaffolds, occasionally balance, stoop, kneel, crouch, and crawl; and frequently handle and finger. The claimant can understand, remember and carry out simple job tasks, but capable of performing GED level 1, 2, or 3, the claimant is unable to perform work that would require directing others, abstract thought or planning, maintain attention and concentration to perform simple tasks in a work environment free of fast paced production requirements, with frequent interaction with supervisors, coworkers and the public. The claimant can work in an environment with occasional changes to the work setting and occasional work related decision making. 3 4 5 6 7 8 9 10 11 12 13 14 [AR 457.]1 Applying this RFC, the ALJ found that Plaintiff is unable to perform 15 any past relevant work, but determined that based on Plaintiff’s age, education, 16 work experience, and residual functional capacity, she could perform representative 17 occupations such as mail clerk (DOT 209.687-026), office helper (DOT 239.567- 18 010), and, assembler, electrical (DOT 729.687-010) and, thus, is not disabled. [AR 19 461-462.] III. 20 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 21 22 23 24 25 26 27 28 GOVERNING STANDARD determine if: (1) the Commissioner’s findings are supported by substantial evidence; 1 The Court, frankly, finds this RFC to be near incoherent. It is perhaps missing some words, but it is unclear whether certain phrases detail things plaintiff allegedly can do or whether they are intended to be limitations, setting forth things she cannot do. The RFC says that plaintiff can perform “simple job tasks.” [AR 457.] But it also says, for example, that “the claimant is unable to . . . maintain attention and concentration and concentration to perform simple tasks in a work environment free of fast paced production requirements . . . .” [Id.] The Court is unsure if there are words or punctuation missing that would clarify the RFC, but in any event, the Court hopes that the ALJ will be more careful on remand. 3 1 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 2 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 3 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 5 Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see 6 also Hoopai, 499 F.3d at 1074. IV. 7 8 9 10 11 DISCUSSION Plaintiff contends that the ALJ: (1) erred in assessing her RFC and (2) erred in the assessment of her credibility. [Pltf.’s Br. at 1-2.] As set forth below, the Court agrees with Plaintiff, in part, and remands the matter for further proceedings. A. Plaintiff’s RFC 12 Plaintiff first contends that the ALJ erred in not including limitations in the 13 RFC that result from Plaintiff’s severe migraine headaches. [Pltf.’s Br. at 6.] The 14 Court disagrees. 15 A claimant’s RFC is the most a claimant can still do despite her limitations. 16 Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996) (citing 20 C.F.R. § 17 416.945(a)); Social Security Ruling (“SSR”) 96-8p (an RFC assessment is ordinarily 18 the “maximum remaining ability to do sustained work activities in an ordinary work 19 setting on a regular and continuing basis,” meaning “8 hours a day, for 5 days a 20 week, or an equivalent work schedule”). In assessing a claimant’s RFC, the ALJ 21 must consider all of the relevant evidence in the record. See 20 C.F.R. §§ 22 404.1545(a)(2), (3). If an RFC assessment conflicts with an opinion from a medical 23 source, the ALJ “must explain why the opinion was not adopted.” SSR 96-8p; see 24 also Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (explaining that an 25 ALJ is not required to discuss all the evidence presented, but must explain the 26 rejection of uncontroverted medical evidence, as well as significant probative 27 evidence). 28 Here, Plaintiff identifies a September 24, 2010 treatment note from Dr. 4 1 Purnima Thakran, M.D., a treating physician, stating that Plaintiff’s headaches 2 prevented her from working from August 31, 2010 to January 7, 2011. [AR 573- 3 575.] In addition, on May 12, 2014, Dr. Karnani, M.D., a treating neurologist, 4 diagnosed Plaintiff with having migraine headaches. [AR 576.] Subsequently, on 5 November 9, 2015, Dr. Robert A. Moore, M.D., a neurological consultative 6 examiner, diagnosed Plaintiff as having “chronic headache syndrome.” [AR 554.] 7 However, the ALJ gave “little weight” to the opinion of Dr. Thakran, in part 8 because Dr. Thakran’s opinion was inconsistent with Plaintiff’s daily activities (a 9 finding that Plaintiff does not challenge). The remainder of the medical evidence 10 Plaintiff cites to merely documents the existence of her migraine headaches, which 11 the ALJ recognized as a severe impairment. [AR 454.] Accordingly, Plaintiff has 12 not met her burden of showing any findings that should have been included in 13 Plaintiff’s RFC regarding her migraine headaches. 14 Plaintiff next contends that the ALJ erred in failing to explain why the RFC 15 assessment omitted findings of the consultative psychologist, Dr. J. Zhang, Psy.D. 16 [Pltf.’s Br. at 8-9.] As discussed below, the Court agrees. 17 Dr. Zhang opined that Plaintiff has moderate impairment in her abilities to 18 understand, remember, and carry out detailed and complex instructions; maintain 19 concentration, persistence, and pace; maintain consistent attendance and to 20 perform routine work duties; and to respond appropriately to usual work 21 situations and to changes in a routine. [AR 564-572.] The ALJ gave Dr. Zhang’s 22 opinion regarding Plaintiff’s mental functional capacity “great weight.” [AR 460.] 23 However, the ALJ’s RFC did not account for Dr. Zhang’s opinion that Plaintiff 24 would have moderate impairment in her ability to maintain consistent attendance, to 25 perform routine work duties, and to respond appropriately to usual work situations. 26 Plaintiff contends that the ALJ erred by failing to offer any explanation as to why 27 these limitations were omitted from the RFC. 28 Although the ALJ purportedly gave great weight to Dr. Zhang’s opinion, the 5 1 ALJ failed to explain why he did not include in the RFC assessment Dr. Zhang’s 2 findings that Plaintiff has moderate limitations in the ability to perform routine work 3 duties, maintain consistent attendance in the workplace, and respond appropriately 4 to usual work situations. See SSR 96-8p; see also Vincent, 739 F.2d at 1394-95. 5 The opinion of an examining psychologist, such as Dr. Zhang, can be rejected only 6 for specific and legitimate reasons that are supported by substantial evidence in the 7 record. Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1298-99 (9th 8 Cir. 1999) (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). As such, the 9 ALJ erred by failing to provide any reasons for rejecting these portions of Dr. 10 11 Zhang’s opinion. In response, the Commissioner contends that the RFC accounted for all the 12 limitations assessed by Dr. Zhang. [Def.’s Br. at 6.] Specifically, the 13 Commissioner argues that Plaintiff’s moderate mental limitations were adequately 14 captured by a restriction to simple tasks. [Id.] The Commissioner’s argument is not 15 persuasive. Although the ALJ’s RFC restriction for simple tasks may encompass 16 the concentration, persistence, and pace limitations assessed by Dr. Zhang, the RFC 17 does not sufficiently account for Plaintiff’s moderate limitations in performing 18 routine work duties, maintaining consistent attendance in the workplace, or 19 responding appropriately to usual work situations. See, e.g., Morinskey v. Astrue, 20 458 Fed. Appx. 640, 641 (9th Cir. 2011) (finding ALJ erred by failing to analyze or 21 make findings setting forth specific, legitimate reasons for rejecting the examining 22 consultant’s opinion that the claimant was moderately impaired in the ability to 23 maintain regular attendance, sustain an ordinary routine, and complete a normal 24 work day or workweek without interruption from his bi-polar disorder); Padilla v. 25 Colvin, No. ED CV 14-1843-PLA, 2015 WL 3849128, at *5-6 (C.D. Cal. June 22, 26 2015) (“despite the ALJ’s assertion that he afforded [the examining psychiatrist’s] 27 opinion significant weight . . . , the ALJ failed to explain why he apparently rejected 28 and did not include in the RFC determination [the examining psychiatrist’s] 6 1 moderate limitations in the ability to perform work activities on a consistent basis 2 without special or additional supervision, and to complete a normal workday or 3 work week due to her mental condition”); Gloria v. Astrue, No. C08-5714RJB-KLS, 4 2009 WL 1763301, at *14 (W.D. Wash. June 19, 2009). This error warrants 5 reversal.2 V. 6 CONCLUSION The decision of whether to remand for further proceedings or order an 7 8 immediate award of benefits is within the district court’s discretion. Harman v. 9 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be 10 served by further administrative proceedings, or where the record has been fully 11 developed, it is appropriate to exercise this discretion to direct an immediate award 12 of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings 13 turns upon the likely utility of such proceedings”). But when there are outstanding 14 issues that must be resolved before a determination of disability can be made, and it 15 is not clear from the record the ALJ would be required to find the claimant disabled 16 if all the evidence were properly evaluated, remand is appropriate. Id. 17 The Court finds that remand is appropriate because the circumstances of this 18 case suggest that further administrative review could remedy the ALJ’s errors. See 19 INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative 20 determination, the proper course is remand for additional agency investigation or 21 explanation, “except in rare circumstances”); Treichler v. Comm’r of Soc. Sec. 22 Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (remand for award of benefits is 23 inappropriate where “there is conflicting evidence, and not all essential factual 24 issues have been resolved”); Harman, 211 F.3d at 1180-81. The Court has found 25 26 27 28 2 The Court has not reached the last issue raised by Plaintiff regarding Plaintiff’s credibility except as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. However, the ALJ should address this additional contention of error in evaluating the evidence on remand. 7 1 that the ALJ erred at step four of the sequential evaluation process. Thus, remand is 2 appropriate to allow the Commissioner to continue the sequential evaluation process 3 starting at step four. 4 For all of the foregoing reasons, IT IS ORDERED that: 5 (1) the decision of the Commissioner is REVERSED and this matter 6 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 7 administrative proceedings consistent with this Memorandum Opinion and 8 Order; and 9 (2) Judgment be entered in favor of Plaintiff. 10 11 IT IS SO ORDERED. 12 13 14 DATED: May 09, 2017 __________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8