Rosemary Martinez v. Carolyn W. Colvin, No. 5:2017cv00070 - Document 20 (C.D. Cal. 2018)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (See document for further details.) (sbou)

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Rosemary Martinez v. Carolyn W. Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROSEMARY M., 12 13 14 15 16 17 ) ) Plaintiff, ) ) ) v. ) ) ) NANCY A. BERRYHILL, Deputy Commissioner for Operations of Social ) ) Security Administration, ) ) Defendant. ) Case No. ED CV 17-70-SP MEMORANDUM OPINION AND ORDER 18 19 I. 20 INTRODUCTION 21 On January 13, 2017, plaintiff Rosemary M. filed a complaint against 22 defendant, Commissioner of the Social Security Administration (“Commissioner”), 23 seeking a review of a denial of supplemental security income (“SSI”). Both parties 24 have consented to proceed for all purposes before the assigned Magistrate Judge 25 pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for 26 adjudication without oral argument. 27 Plaintiff presents one issue for decision: whether the Administrative Law 28 Judge (“ALJ”) failed to properly consider an examining physician’s opinion. 1 Dockets.Justia.com 1 Memorandum in Support of the Plaintiff’s Complaint (“P. Mem.”) at 5-9; see 2 Memorandum in Support of Defendant’s Answer (“D. Mem.”) at 2-9. 3 Having carefully studied the parties’ written submissions, the decision of the 4 ALJ, and the Administrative Record (“AR”), the court concludes that, as detailed 5 herein, the ALJ erred in rejecting the examining physician’s opinion. The court 6 therefore remands this matter to the Commissioner in accordance with the 7 principles and instructions set forth below. 8 II. 9 FACTUAL AND PROCEDURAL BACKGROUND 10 Plaintiff, who was twenty-eight years old on her alleged disability onset 11 date, completed some of twelfth grade but did not graduate from high school. AR 12 at 167, 185. She has no past relevant work. Id. at 33, 184. 13 On January 17, 2013, plaintiff filed a Title XVI application for SSI. Id. at 14 157, 196. Plaintiff alleged she has been disabled since September 1, 1997 due to 15 fibromyalgia, an ovarian cyst, and mental disabilities. Id. at 101, 157. The 16 Commissioner denied plaintiff’s application, after which plaintiff filed a request 17 for reconsideration, which was denied. Id. at 101, 109. Plaintiff then filed a 18 request for a hearing. Id. at 116. 19 On June 25, 2015, plaintiff, represented by counsel, appeared and testified at 20 a hearing before the ALJ. Id. at 42-67. At the hearing, the ALJ also heard 21 testimony from Heidi Paul, a vocational expert (“VE”). Id. at 65-66. On August 5, 22 2015, the ALJ denied plaintiff’s claim for benefits. Id. at 25-35. 23 Applying the well-known five-step sequential evaluation process, the ALJ 24 found, at step one, that plaintiff had not engaged in substantial gainful activity 25 since January 17, 2013, the application date. Id. at 27. 26 27 28 2 1 At step two, the ALJ found plaintiff suffered from the following severe 2 impairments: degenerative disc disease (“DDD”) of the spine, fibromyalgia, 3 diarrhea, bipolar disorder, and posttraumatic stress disorder (“PTSD”). Id. 4 At step three, the ALJ found plaintiff’s impairments, whether individually or 5 in combination, did not meet or medically equal the severity of one of the listed 6 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the 7 “Listings”).1 Id. at 28. 8 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),2 and 9 determined that plaintiff had the RFC to perform less than the full range of medium 10 work as defined by 20 C.F.R. § 416.967(b). Id. at 29. Specifically, plaintiff could 11 lift and/or carry twenty-five pounds frequently and fifty pounds occasionally; 12 could sit for six hours out of an eight-hour workday; could stand and/or walk for 13 six hours out of an eight-hour workday; could not climb ladders, ropes or 14 scaffolds; had to avoid concentrated exposure to pulmonary or respiratory irritants; 15 required ready access to a restroom; was limited to simple repetitive tasks where 16 job duties did not change on a day to day basis; and was limited to superficial 17 interaction with coworkers and no public contact. Id. 18 The ALJ found, at step four, that plaintiff had no past relevant work. Id. at 19 33. 20 21 22 The Social Security Administration issued new regulations effective March 23 27, 2017. Unless otherwise stated, all regulations cited in this decision are to those effective for cases filed prior to March 27, 2017. 24 1 Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 115526 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, 27 the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 25 2 3 1 At step five, the ALJ found there are jobs that exist in significant numbers in 2 the national economy that plaintiff could perform. Id. at 34. 3 Plaintiff filed a timely request for review of the ALJ’s decision, which was 4 denied by the Appeals Council. Id. at 1-7, 17-19. 5 The ALJ’s decision stands as the final decision of the Commissioner. 6 III. 7 STANDARD OF REVIEW 8 This court is empowered to review decisions by the Commissioner to deny 9 benefits. 42 U.S.C. § 405(g). The findings and decision of the Commissioner 10 must be upheld if they are free of legal error and supported by substantial evidence. 11 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if 12 the court determines that the ALJ’s findings are based on legal error or are not 13 supported by substantial evidence in the record, the court may reject the findings 14 and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 15 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 16 “Substantial evidence is more than a mere scintilla, but less than a 17 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 18 “relevant evidence which a reasonable person might accept as adequate to support 19 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 20 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 21 finding, the reviewing court must review the administrative record as a whole, 22 “weighing both the evidence that supports and the evidence that detracts from the 23 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 24 affirmed simply by isolating a specific quantum of supporting evidence.’” 25 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 26 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 27 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 28 4 1 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 2 1992)). 3 IV. 4 DISCUSSION 5 Plaintiff argues the ALJ failed to properly consider the opinion of Dr. Jarvis 6 Ngati, an examining physician. P. Mem. at 5-9. Specifically, she contends the 7 ALJ failed to provide a specific and legitimate reason to reject the opinion. 8 In determining whether a claimant has a medically determinable impairment, 9 among the evidence the ALJ considers is medical evidence. 20 C.F.R. 10 § 404.1527(b). In evaluating medical opinions, the regulations distinguish among 11 three types of physicians: (1) treating physicians; (2) examining physicians; and (3) 12 non-examining physicians.3 20 C.F.R. § 404.1527(c), (e); Lester v. Chater, 81 13 F.3d 821, 830 (9th Cir. 1995) (as amended). “Generally, a treating physician’s 14 opinion carries more weight than an examining physician’s, and an examining 15 physician’s opinion carries more weight than a reviewing physician’s.” Holohan v. 16 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(c)(1)-(2). 17 The opinion of the treating physician is generally given the greatest weight because 18 the treating physician is employed to cure and has a greater opportunity to 19 understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 20 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 21 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 22 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 23 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 24 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 25 26 Psychologists are considered acceptable medical sources whose opinions are 27 accorded the same weight as physicians. 20 C.F.R. § 404.1513(a)(2). Accordingly, for ease of reference, the court will refer to all psychologists as 28 physicians. 3 5 1 opinions, the ALJ must provide specific and legitimate reasons supported by 2 substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide 3 specific and legitimate reasons supported by substantial evidence in rejecting the 4 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 5 non-examining physician, standing alone, cannot constitute substantial evidence. 6 Widmark v. Barnhart, 454 F.3d 1063, 1066-67 n.2 (9th Cir. 2006); Morgan v. 7 Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 8 813, 818 n.7 (9th Cir. 1993). 9 10 Medical Opinions Plaintiff was treated at the Inland Behavioral and Health Services on March 11 8, March 25, and April 12, 2013. AR at 306. Sean Gibbs, a psychology intern, 12 diagnosed plaintiff with posttraumatic stress disorder. Id. at 305, 307, 308. His 13 treatment notes and diagnosis were also signed by Dr. Christine Bierdrager-Salley, 14 a psychologist. Id. Gibbs also diagnosed plaintiff with a Global Assessment of 15 Functioning (“GAF”) score of 43. Id. A GAF score of 41-50 is indicative of 16 “serious symptoms,” such as suicidal ideation, severe obsessional rituals, or 17 frequent shoplifting, or any serious impairment in social, occupational, or school 18 functioning, such as a lack of friends or an inability to maintain employment. 19 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC & STATISTICAL MANUAL OF 20 MENTAL DISORDERS 34 (4th ed. 1994) (“DSM-IV”) (describing the GAF scale 21 designed to provide psychiatrists a method of scoring and comparing patients 22 functional capacity in light of diagnoses). 23 Dr. Jarvis Ngati, a forensic psychiatrist, examined plaintiff on June 1, 2013. 24 AR at 339. Dr. Ngati diagnosed plaintiff with bipolar disorder. Id. at 342. He also 25 opined the following: plaintiff’s ability to perform simple and repetitive tasks was 26 mildly to moderately limited; her ability to perform detailed and complex tasks was 27 moderately to markedly limited; her ability to relate and interact with coworkers 28 and the public was markedly limited; her ability to accept instructions from 6 1 supervisors was moderately limited; her ability to maintain concentration, 2 attention, persistence, and pace was moderately limited; her ability to perform 3 activities without special or additional supervision was markedly limited; and her 4 ability to deal with the usual stressors encountered in the workplace, maintain 5 regular attendance, and complete a normal workday or workweek was markedly 6 limited. Id. 7 The state agency physicians diagnosed plaintiff with severe affective 8 disorder. Id. at 75, 91. They also opined she would have moderate restrictions in 9 her activities of daily living; moderate difficulties in maintaining social 10 functioning; and moderate difficulties in maintaining concentration, persistence, or 11 pace. Id. at 76, 91. In contrast to Dr. Ngati’s opinion, the state agency physicians 12 found plaintiff was only moderately limited in her ability to interact appropriately 13 with the public and to get along with coworkers; not significantly limited in her 14 ability to sustain a routine without special supervision; and not significantly limited 15 in her ability to maintain regular attendance. Id. at 80, 96. Phaedra Caruso-Radin, 16 a psychologist, also noted she believed a consultative examination should be 17 scheduled for plaintiff because plaintiff appeared to have mental impairments. Id. 18 at 75. She noted plaintiff was very talkative and unfocused, and gave many 19 unnecessary details when answering questions. Id. But she opined overall that 20 plaintiff could complete simple tasks in an NPC environment. Id. Another state 21 psychologist, Dr. Lief Leaf, also diagnosed plaintiff with bipolar disorder and a 22 GAF score of 50. Id. at 92. But he also opined the data indicated plaintiff could 23 complete simple tasks in an NPC environment.4 Id. 24 25 26 27 28 Neither agency psychologist defined NPC; the court assumes it means no public contact. 4 7 1 The ALJ’s Findings 2 Relying on the treatment records, objective medical evidence, and medical 3 and non-medical opinions with respect to mental limitations, the ALJ determined 4 plaintiff was limited to simple repetitive tasks where job duties do not change on a 5 day to day basis; and was limited to superficial interaction with coworkers and no 6 public contact. Id. at 29. 7 In reaching his RFC determination, the ALJ discussed all of the medical 8 history and gave little weight to the opinions of Sean Gibbs and Dr. Ngati. Id. at 9 33. Although somewhat unclear, the ALJ also states he gave great weight to the 10 state agency consultants’ opined medium physical limitations, but gave little 11 weight to the psychological moderate limitations they opined. Id. at 32-33. The 12 ALJ stated he gave very little weight to Dr. Ngati’s opinion because: (1) it was 13 inconsistent with the normal objective findings in the record as a whole; and (2) 14 plaintiff was able to follow the conversation and questions adequately and 15 remembered treatment history accurately at the hearing. Id. 16 Because the opinion of Dr. Ngati, an examining physician, was contradicted 17 in part by the opinions of the state agency physicians, the ALJ needed to provide 18 specific and legitimate reasons supported by substantial evidence for rejecting Dr. 19 Ngati’s opinion. The ALJ’s first reason for rejecting Dr. Ngati’s opinion was that 20 it was inconsistent with the record as a whole. Id. at 33. Defendant argues that 21 since the record as a whole included the ALJ’s unchallenged discounting of 22 plaintiff’s credibility, and since plaintiff’s self-reporting was part of the basis for 23 Dr. Ngati’s opinion, the ALJ therefore properly gave very little weight to Dr. 24 Ngati’s opinion. D. Mem. at 3-7. But there is no indication in the ALJ’s decision 25 that his adverse credibility finding had anything to do with his rejection of Dr. 26 Ngati’s opinion. 27 If the ALJ actually said nothing more than that the opinion was inconsistent 28 with the record as a whole, such reason would be insufficient on its face. See 8 1 Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (“[A]n ALJ errs when 2 he rejects a medical opinion or assigns it little weight while doing nothing more 3 than ignoring it, asserting without explanation that another medical opinion is more 4 persuasive, or criticizing it with boilerplate language that fails to offer a 5 substantive basis for his conclusion.”) (citation omitted). The ALJ here in fact 6 states Dr. Ngati’s opinion was “inconsistent with the record as a whole, which 7 show[s] normal objective findings.” AR at 33. This makes it clear the ALJ was 8 not rejecting Dr. Ngati’s opinion because it was based on plaintiff’s discredited 9 allegations; however, the ALJ’s bald assertion that Dr. Ngati’s opinion was 10 inconsistent with the normal objective findings in the record as a whole is still 11 inadequate. 12 “To say that medical opinions are not supported by sufficient objective 13 findings or are contrary to the preponderant conclusions mandated by the objective 14 findings does not achieve the level of specificity our prior cases have required, 15 even when the objective factors are listed seriatim.” Embrey v. Bowen, 849 F.2d 16 418, 421 (9th Cir. 1988). Here, the ALJ gave an abbreviated and incomplete 17 account of certain mental impairment findings, but failed to specify the normal 18 objective findings he found inconsistent with Dr. Ngati’s opinion. See AR at 3219 33. Among the evidence the ALJ disregarded was the state agency psychologists’ 20 diagnosis that plaintiff’s GAF score was 50. As noted above, a GAF score in the 21 range of 41-50 is indicative of serious symptoms. Dr. Ngati’s opinion that plaintiff 22 would have moderate to marked limitation in various work-related tasks was 23 consistent with at least some of the objective medical evidence. Thus, not only 24 was the first reason given by the ALJ insufficiently specific, it also was not 25 supported by substantial evidence. 26 The ALJ’s second reason for rejecting Dr. Ngati’s opinion was that plaintiff 27 was able to follow the conversation and questions adequately and remembered her 28 treatment history accurately at the hearing. By itself, this is a dubious reason to 9 1 reject a physician’s opinion. See Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 2 1985) (an “ALJ’s reliance on his personal observations . . . at the hearing has been 3 condemned as ‘sit and squirm’ jurisprudence,” particularly where there is objective 4 evidence to the contrary). Moreover, this reason also was unsupported by the 5 record. 6 Plaintiff’s answers at the hearing frequently wandered from the questions 7 that were directed to her. When the ALJ asked if she received treatment for her 8 knee, plaintiff answered with irrelevant details about treatment for her neck and 9 back. AR at 44. When the ALJ asked how often plaintiff had to run to the 10 bathroom because of her bowel movements, she answered with details about her 11 weight and stomach. Id. at 52. When the ALJ asked how long it took her to lose 12 thirty pounds, she answered with details about her son’s illness. Id. When 13 plaintiff’s attorney asked what symptoms plaintiff had in her back, plaintiff 14 answered with details about her doctor’s diagnosis for her neck. Id. at 57-58. 15 Although plaintiff may have been able to follow the conversation and remember 16 her treatment history, she provided unnecessary details and strayed from the call of 17 questions, failing to answer some adequately. This is consistent with Dr. Ngati’s 18 opinion that, inter alia, her ability to perform detailed and complex tasks was 19 moderately to markedly limited and her ability to accept instructions from 20 supervisors was moderately limited because of her need to be redirected often 21 during the evaluation. Id. at 342. 22 Accordingly, neither reason the ALJ gave for giving Dr. Ngati’s opinion 23 little weight was specific and legitimate and supported by substantial evidence. As 24 such, the ALJ erred in rejecting Dr. Ngati’s opinion. Since the ALJ did not 25 incorporate many of Dr. Ngati’s opined limitations into his RFC determination – 26 including plaintiff’s need for special supervision and markedly limited ability to 27 maintain regular attendance – the court cannot say this error was harmless. 28 Therefore, the ALJ’s error in rejecting Dr. Ngati’s opinion requires reversal. 10 1 V. 2 REMAND IS APPROPRIATE 3 The decision whether to remand for further proceedings or reverse and 4 award benefits is within the discretion of the district court. McAllister v. Sullivan, 5 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 6 discretion to direct an immediate award of benefits where: “(1) the record has been 7 fully developed and further administrative proceedings would serve no useful 8 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 9 evidence, whether claimant testimony or medical opinions; and (3) if the 10 improperly discredited evidence were credited as true, the ALJ would be required 11 to find the claimant disabled on remand.” Garrison, 759 F.3d at 1020 (setting 12 forth three-part credit-as-true standard for remanding with instructions to calculate 13 and award benefits). But where there are outstanding issues that must be resolved 14 before a determination can be made, or it is not clear from the record that the ALJ 15 would be required to find a plaintiff disabled if all the evidence were properly 16 evaluated, remand for further proceedings is appropriate. See Benecke v. Barnhart, 17 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 18 (9th Cir. 2000). In addition, the court must “remand for further proceedings when, 19 even though all conditions of the credit-as-true rule are satisfied, an evaluation of 20 the record as a whole creates serious doubt that a claimant is, in fact, disabled.” 21 Garrison, 759 F.3d at 1021. 22 Here, remand is required to resolve outstanding issues. On remand, the ALJ 23 shall reconsider Dr. Ngati’s opinion and either credit it or provide legally sufficient 24 reasons supported by substantial evidence for rejecting it. The ALJ shall then 25 proceed through steps three, four, and five to determine what work, if any, plaintiff 26 was capable of performing. 27 // 28 // 11 1 VI. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered 4 REVERSING the decision of the Commissioner denying benefits, and 5 REMANDING the matter to the Commissioner for further administrative action 6 consistent with this decision. 7 8 9 10 DATED: October 29, 2018 11 SHERI PYM United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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