Anna Cristina Carbajal v. Nancy A. Berryhill, No. 5:2017cv00970 - Document 22 (C.D. Cal. 2018)

Court Description: MEMORANDUM OPINION AND ORDER REVERSING AND REMANDING DECISION OF COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. IT IS ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this opinion. (See order for details) (hr)

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Anna Cristina Carbajal v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANNA CRISTINA CARBAJAL, 12 13 14 15 16 Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Case No. EDCV 17-0970-AFM MEMORANDUM OPINION AND ORDER REVERSING AND REMANDING DECISION OF COMMISSIONER Defendant. 17 18 Plaintiff filed this action seeking review of the Commissioner’s final decision 19 denying her applications for disability insurance benefits and supplemental security 20 income. In accordance with the Court’s case management order, the parties have 21 filed memorandum briefs addressing the merits of the disputed issues. This matter 22 now is ready for decision. 23 BACKGROUND 24 On October 30, 2012, Plaintiff filed applications for Disability Insurance 25 Benefits and Supplemental Security Income, alleging disability beginning 26 September 22, 2009. (Administrative Record (“AR”) 593-602.) Her applications 27 were denied initially and upon reconsideration. (AR 409-422.) Plaintiff appeared 28 with counsel at hearings conducted before an ALJ on November 10, 2014, Dockets.Justia.com 1 March 11, 2015, and July 31, 2015, at which Plaintiff, a medical expert (“ME”), 2 and a vocational expert (“VE”) testified. (AR 318-362.) 3 On August 20, 2015, the ALJ issued a decision finding that Plaintiff suffered 4 from the following medically severe impairments: degenerative disc disease of the 5 lumbar spine, stenosis, and stress incontinence. (AR 302.) The ALJ then 6 determined that Plaintiff retained the residual functional capacity (“RFC”) to 7 perform light work except that she could occasionally bend, kneel, stoop, crouch 8 and crawl and she required access to a restroom. (AR 304-310.) After finding that 9 Plaintiff’s RFC permitted her to perform her past relevant work as a teller 10 supervisor, the ALJ concluded that Plaintiff was not disabled at any time from 11 September 22, 2009 through the date of the ALJ’s decision. (AR 310-311.) On 12 March 16, 2017, the Appeals Council denied review, rendering the ALJ’s decision 13 the final decision of the Commissioner. (AR 1-7.) DISPUTED ISSUE 14 15 16 17 Whether the ALJ improperly rejected the opinion of treating physician Suk Park, M.D. STANDARD OF REVIEW 18 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 19 determine whether the Commissioner’s findings are supported by substantial 20 evidence and whether the proper legal standards were applied. See Treichler v. 21 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 22 evidence means “more than a mere scintilla” but less than a preponderance. See 23 Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is “such 24 relevant evidence as a reasonable mind might accept as adequate to support a 25 conclusion.” Richardson, 402 U.S. at 401. The Court reviews the record as a whole, 26 weighing both the evidence that supports and the evidence that detracts from the 27 Commissioner’s conclusion. See Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 28 2014). Where evidence is susceptible of more than one rational interpretation, the 2 1 Commissioner’s decision must be upheld. See Garrison, 759 F.3d at 1010; Ryan v. 2 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Orn v. Astrue, 495 F.3d 3 625, 630 (9th Cir. 2007). Finally, even when an ALJ’s decision contains error, it 4 must be affirmed if the error was harmless. Treichler, 775 F.3d at 1099. DISCUSSION 5 6 I. The ALJ Gave Significant Weight to Non-Treating Physician Opinions 7 In reaching his RFC assessment, the ALJ gave significant weight to the 8 opinion of P. Moazzaz, M.D. Dr. Moazzaz provided an orthopedic consultative 9 examination in March 2013. (AR 307, 309.) Dr. Moazzaz reported that Plaintiff had 10 a reciprocal gait pattern with normal heel and toe walking. Plaintiff was able to 11 squat, though she reported pain while squatting. Straight leg raising was negative 12 bilaterally in both the seated and supine positions. Plaintiff’s motor strength was 13 5/5 in both upper and lower extremities. Dr. Moazzaz diagnosed Plaintiff with 14 degenerative disc disease and left hip arthralgia. He opined that Plaintiff could lift 15 and carry 20 pounds occasionally and 10 pounds frequently; could stand and walk 16 for six hours in an eight-hour work day; could sit for six hours in an eight-hour 17 work day with normal breaks; could occasionally bend, knees, crawl, stoop and 18 crouch; had no restriction on performing overhead activities; had the full use of her 19 hands for fine and gross manipulation; and did not require an assistive ambulatory 20 device. (AR 745-749.) 21 The ALJ also gave significant weight to the state agency review physicians 22 who evaluated Plaintiff’s medical records and assessed functional limitations 23 essentially identical to those assessed by Dr. Moazzaz. (AR 309, 383-404.) 24 The ALJ further discussed the opinion of orthopedist Eric Schmitter, M.D., 25 who testified as a medical expert. Dr. Schmitter reviewed Plaintiff’s medical 26 records and opined that Plaintiff had the following medically determinable 27 impairment: degenerative changes in L5-S1 with mild to moderate stenosis. 28 Dr. Schmitter noted that Plaintiff had a positive straight leg raising on the left, but 3 1 other examinations showed negative straight leg raising and a normal gait. He also 2 noted that the record contained no evidence of neurologic findings or symptoms. 3 (AR 307-308, 321-328.) 4 II. The ALJ Gave Little Weight to the Opinion of Treating Physician 5 Dr. Park. 6 The medical record includes an assessment by one Plaintiff’s treating 7 physicians, Suk Park, M.D., physician in charge of Kaiser Victorville. In February 8 2015, Dr. Park completed a medical questionnaire in which he opined that Plaintiff 9 could lift and carry on an occasional and frequent basis no more than 10 pounds; 10 could sit for less than two hours in an eight-hour workday; could stand/walk for less 11 than two hours in an eight-hour workday; could sit for ten minutes before being 12 required to change position; could stand for five minutes before changing position; 13 was required to walk around every five minutes for ten minutes; needed to lie down 14 at unpredictable intervals every fifteen minutes during a work shift; could 15 occasionally twist, stoop, crouch, climb stairs and ladders; was “constantly” limited 16 in her ability to reach, handle, finger, feel, push and pull; should avoid even 17 moderate exposure to extreme cold, heat, wetness, humidity, noise, fumes, and 18 hazards, which would exacerbate her pain; and would miss more than three days a 19 month of work due to her impairments. (AR 2230-2232.) 20 March 12, 2015, Dr. Park further wrote that Plaintiff suffered from multilevel 21 lumbar spine arthritis and mild to moderate lumbar spinal stenosis and that “[t]hese 22 conditions prevent her from working.” (AR 2234.) 23 24 In a letter dated The ALJ’s discussion of Dr. Park’s opinion consists of the following paragraph: 25 I have considered and give little weight to S. Park, M.D., who 26 filled out a [] residual functional capacity questionnaire on February 27 16, 2015 and made a disability statement on March 12, 2015. (Exhibits 28 26F, 27F, p.2 and 29F, p. 1). I have given little weight to this opinion 4 1 because it is not supported by objective evidence and it is inconsistent 2 with the record as a whole. As an opinion on an issue reserved to the 3 Commissioner, this statement is not entitled to controlling weight and 4 is not given special significance pursuant to 20 CFR 404.1527(d) and 5 416.927(d) and SSR 96-5. This opinion is inconsistent with the 6 objective findings already discussed above in this decision which show 7 no more than moderate findings. This opinion is also inconsistent with 8 the claimant’s admitted activities of daily living that have already been 9 described above in this decision. Therefore, this is given little weight. (AR 308-309.) 10 11 III. The ALJ Erred in His Rejection of Dr. Park’s Opinion Regarding 12 Plaintiff’s RFC. 13 The medical opinion of a claimant’s treating physician is entitled to 14 controlling weight so long as it is supported by medically acceptable clinical and 15 laboratory diagnostic techniques and is not inconsistent with other substantial 16 evidence in the record. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) 17 (quoting 20 C.F.R. § 404.1527(c)(2)). If a treating physician’s medical opinion is 18 uncontradicted, the ALJ may only reject it based on clear and convincing reasons. 19 Trevizo, 871 F.3d at 675; Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th 20 Cir. 2008). If a treating physician’s opinion is contradicted, the ALJ must provide 21 specific and legitimate reasons supported by substantial evidence in the record 22 before rejecting it. Trevizo, 871 F.3d at 675; Ghanim v. Colvin, 763 F.3d 1154, 23 1160-1061 (9th Cir. 2014); Garrison, 759 F.3d at 1012. The ALJ can meet the 24 requisite specific and legitimate standard “by setting out a detailed and thorough 25 summary of the facts and conflicting clinical evidence, stating his interpretation 26 thereof, and making findings.” Trevizo, 871 F.3d at 675 (citations and internal 27 quotation marks omitted). 28 5 1 In rejecting Dr. Park’s opinion as to Plaintiff’s RFC,1 the ALJ found it was 2 not supported by objective medical evidence and was inconsistent with the record 3 as a whole, which shows no more than “moderate findings.” (AR 308-309.) 4 Generally, these may constitute valid reasons for discounting the opinion of a 5 treating physician if they are provided with specificity. See Batson v. Comm’r of 6 Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ may discredit treating 7 physician’s opinion that is unsupported by the record as a whole or by objective 8 medical findings). Here, however, the ALJ failed to identify any specific 9 inconsistencies between Dr. Park’s opinion and the medical record and failed to 10 explain which portions of Dr. Park’s opinion lacked objective support and why. 11 Merely invoking the boilerplate language that Dr. Park’s opinion lacked objective 12 support or was inconsistent with undefined portions of the record reflecting 13 moderate findings does not amount to a sufficient and specific reason for rejecting 14 the opinion. The ALJ did not specify particular parts of the objective record or of 15 Dr. Park’s opinion; nor did he explain which “moderate” findings were inconsistent 16 with what findings of Dr. Park. See Garrison, 759 F.3d at 1012-1013 (“an ALJ errs 17 when he rejects a medical opinion or assigns it little weight while doing nothing 18 more than ignoring it, asserting without explanation that another medical opinion is 19 more persuasive, or criticizing it with boilerplate language that fails to offer a 20 substantive basis for his conclusion”); Embrey v. Bowen, 849 F.2d 418, 421 (9th 21 Cir. 1988) (“To say that medical opinions are not supported by sufficient objective 22 findings or are contrary to the preponderant conclusions mandated by the objective 23 findings does not achieve the level of specificity our prior cases have required....”); 24 1 25 26 27 28 To the extent that the ALJ declined to give controlling weight to Dr. Park’s opinion that Plaintiff was “unable to work,” it was not error to do so because the determination of a claimant’s ultimate disability is one reserved to the Commissioner. See Sarkiss v. Colvin, 623 F. App’x 329, 330 (9th Cir. 2015). This reason, however, does not apply to Dr. Park’s February 2015 assessment of Plaintiff’s RFC, which was not an opinion on the ultimate conclusion of disability. 6 1 Carmona v. Berryhill, 2017 WL 3614425, at *4 (C.D. Cal. Aug. 22, 2017) (“Saying 2 that a medical opinion is ‘inconsistent with the substantial evidence’ is not a 3 specific reason for rejecting the opinion; it is nothing more than boilerplate.”); 4 Stimson v. Colvin, 194 F. Supp. 3d 986, 1002 (N.D. Cal. 2016) (same). 5 The ALJ offered an additional reason for rejecting Dr. Park’s opinion – that it 6 was inconsistent with Plaintiff’s “admitted activities of daily living that have 7 already been described above in this decision.” (AR 309.) Regarding Plaintiff’s 8 credibility, the ALJ discussed Plaintiff’s daily activities, finding that she “has 9 engaged in a somewhat normal level of daily activity and interaction.” (AR 305.) 10 The ALJ noted that Plaintiff prepared meals, washed dishes, took care of her dog, 11 had no problems with personal care, did laundry, went outside “very often” and 12 alone, drove, shopped in stores and on the computer, read and sewed. (AR 305, 13 654-657.) The ALJ also referred to Plaintiff’s testimony that she took care of her 14 grandchild until she was six months old (a few months prior to the hearing date), 15 after which Plaintiff continued to visit her four times a week. (AR 305, 344-345.) 2 16 An inconsistency between a physician’s opinion and a claimant’s daily 17 activities may constitute a proper reason to reject a treating physician’s opinion if it 18 is provided with the required specificity and explanation. See Ghanim, 763 F.3d at 19 1162 (treating physician opinion may be discounted where it is inconsistent with 20 claimant’s level of activity). But in the present case, the ALJ failed to identify any 21 particular daily activity or activities that he considered to be inconsistent with any 22 specific portion of Dr. Park’s opinion. Without this, the ALJ’s discussion of 23 Plaintiff’s daily activities does not rise to the level of a specific and legitimate 24 reason for rejecting Dr. Park’s opinion. See Brown-Hunter v. Colvin, 806 F.3d 487, 25 493-494 (9th Cir. 2015) (citing a claimant’s ability to perform basic activities 26 27 28 2 It should be noted that Plaintiff’s function report indicates that she used to help her father paint houses, but that she was no longer able to do so due to pain. (AR 653.) Thus, the ALJ misstated the record when he indicated that Plaintiff reports helping her father paint houses. (AR 305.) 7 1 without explaining how these activities were inconsistent with the claimant’s 2 subjective complaints is legally insufficient basis for credibility determination). 3 Although the Court will not fault the Commissioner for explaining a decision with 4 “less than ideal clarity,” it still demands that the reasoning behind a decision be set 5 forth in a way that allows for meaningful review. Brown-Hunter, 806 F.3d at 492 6 (quoting Treichler, 775 F.3d at 1099). The ALJ erred in not doing so here. 7 Relying upon the Ninth Circuit’s decision in Trevizo, Plaintiff further argues 8 that the ALJ erred in failing to assess the appropriate regulatory factors before 9 rejecting Dr. Park’s opinion. (ECF No. 19 at 9-10.) An ALJ should weigh a treating 10 physician’s opinion according to factors such as the nature, extent, and length of the 11 physician-patient working relationship, the frequency of examinations, whether the 12 physician’s opinion is supported by and consistent with the record, and the 13 specialization of the physician. See Trevizo, 871 F.3d at 676; 20 C.F.R. 14 § 404.1527(c)(2)-(6). In Trevizo, the Court found that the ALJ had “erred by failing 15 to apply the appropriate factors in determining the extent to which the opinion 16 should be credited.” 871 F.3d at 676. Specifically, although the ALJ indicated that 17 the treating physician’s opinion was inconsistent with the other evidence in the 18 record, “the ALJ did not consider factors such as the length of the treating 19 relationship, the frequency of examination, the nature and extent of the treatment 20 relationship, or the supportability of the opinion.” Id. The Court of Appeals 21 concluded that, “[t]his failure alone constitutes reversible legal error.” Id. 22 While arguably Trevizo may not require a detailed written analysis of each 23 factor, it does require some indication that the ALJ considered the relevant factors. 24 See Torres v. Berryhill, 2018 WL 1245106, at *5–6 (S.D. Cal. Mar. 9, 2018) 25 (Trevizo does not require a written analysis of the regulatory factors, but rather an 26 indication that the ALJ considered them); Zeitler v. Berryhill, 2017 WL 6017853, at 27 *3, n.1 (N.D. Cal. Dec. 5, 2017) (rejecting argument that “specific findings on each 28 factor were required in every case in light of Trevizo”); Standen v. Berryhill, 2017 8 1 WL 4237867, at *8 (E.D. Cal. Sept. 25, 2017) (“The court concludes that it should 2 not read into Trevizo a requirement that ALJs explicitly recite an analysis of each 3 § 404.1527(c) factor in each of their decisions. Rather, Trevizo requires that the 4 record reflect that the ALJ actually considered and applied the appropriate 5 factors.”). 6 Nevertheless, the ALJ’s opinion here does not support the conclusion that he 7 actually considered all of the relevant factors before rejecting Dr. Park’s opinion. 8 Indeed, the ALJ’s decision does not even refer to Dr. Park as Plaintiff’s treating 9 physician. Although the ALJ referenced a lack of objective support and 10 inconsistency with the record, as discussed above, he did so in a cursory fashion. 11 Further, there is no indication that the ALJ considered required factors such as the 12 length of the treatment relationship and the frequency of examination, the nature 13 and extent of the treatment relationship, or the specialization of the physician. See 14 20 C.F.R. § 404.1527(c)(2)–(6). As in Trevizo, this failure alone amounts to error. 15 REMEDY 16 Ninth Circuit case law “precludes a district court from remanding a case for 17 an award of benefits unless certain prerequisites are met.” Dominguez v. Colvin, 18 808 F.3d 403, 407 (9th Cir. 2016) (citations omitted). “The district court must first 19 determine that the ALJ made a legal error, such as failing to provide legally 20 sufficient reasons for rejecting evidence. . . . If the court finds such an error, it must 21 next review the record as a whole and determine whether it is fully developed, is 22 free from conflicts and ambiguities, and all essential factual issues have been 23 resolved.” Id. (citation and internal quotation marks omitted). 24 Although the Court has found error as discussed above, the record on the 25 whole is not fully developed, and factual issues remain outstanding. The issues 26 concerning Plaintiff’s alleged disability “should be resolved through further 27 proceedings on an open record before a proper disability determination can be made 28 by the ALJ in the first instance.” See Brown-Hunter, 806 F.3d at 496; see also 9 1 Treichler, 775 F.3d at 1101 (remand for award of benefits is inappropriate where 2 “there is conflicting evidence, and not all essential factual issues have been 3 resolved”) (citation omitted); Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 4 1135, 1138 (9th Cir. 2011) (same where the record does not clearly demonstrate the 5 claimant is disabled within the meaning of the Social Security Act). Accordingly, the appropriate remedy is a remand for further administrative 6 7 proceedings pursuant to sentence four of 42 U.S.C. § 405(g).3 8 IT IS ORDERED that Judgment be entered reversing the decision of the 9 Commissioner of Social Security and remanding this matter for further 10 administrative proceedings consistent with this opinion. 11 12 DATED: 3/27/2018 13 14 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 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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