Joanna Lynn Kiefert v. Nancy A. Berryhill, No. 5:2017cv01820 - Document 20 (C.D. Cal. 2018)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish. Because this matter is being remanded for reassessment of the severity of Plaintiff's physical impairments and related medical opinion evidence, the Court does not reach the r emaining issue raised by Plaintiff, as to the weight afforded to Natasha Creighton, M.D., except as to determine that reversal with the directive for immediate payment of benefits for the period after the alleged medical improvement date would not be appropriate at this time. However, the ALJ should address Plaintiff's additional contentions of error when evaluating the evidence on remand. (ec)

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Joanna Lynn Kiefert v. Nancy A. Berryhill Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOANNA LYNN KIEFERT, Plaintiff 12 13 14 15 Case No. 5:17-cv-01820-GJS MEMORANDUM OPINION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 I. 17 18 PROCEDURAL HISTORY Plaintiff Joanna Lynn Kiefert (“Plaintiff”) filed a complaint seeking review of 19 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. 17 (“Pltf.’s Br.”), Dkt. 18 (“Def.’s 23 Br.”), and Dkt. 19 (“Pltf.’s Reply”).] The Court has taken the parties’ briefing under 24 submission without oral argument. For the reasons discussed below, the Court finds 25 that this matter should be remanded for additional proceedings. 26 27 28 II. ADMINISTRATIVE DECISION UNDER REVIEW On April 16, 2013, Plaintiff filed an application for DIB, alleging that she became disabled as of October 22, 2011. [Dkt. 14, Administrative Record (“AR”) Dockets.Justia.com 1 22, 274-75.] The Commissioner denied her initial claim for benefits on November 2 5, 2013, and upon reconsideration on January 8, 2014. [AR 22; 113-133.] On 3 October 29, 2015, a hearing was held before Administrative Law Judge (“ALJ”) 4 Joseph Schloss. [AR 44-67.] A second hearing was held on April 25, 2016. [AR 5 68-91.] A third hearing was held on July 28, 2016. [AR 92-114.] On August 22, 6 2016, the ALJ issued a decision denying Plaintiff’s request for benefits. [AR 22- 7 38.] Plaintiff requested review from the Appeals Council, which denied review on 8 July 20, 2017. [AR 1-7.] 9 Applying the five-step sequential evaluation process, the ALJ found that 10 Plaintiff was not disabled. See 20 C.F.R. §§ 404.1520(b)-(g)(1). At step one, the 11 ALJ concluded that Plaintiff has not engaged in substantial gainful activity since her 12 alleged onset date of October 22, 2011 through her date last insured of March 31, 13 2015. [AR 24 (citing 20 C.F.R. § 404.1571).] At step two, the ALJ found that 14 Plaintiff suffered from the following severe impairments: inflammatory arthritis due 15 to Hashimoto disease; osteoarthritis; degenerative joint disease of the bilateral hips; 16 periathritis of the right shoulder; degenerative joint disease off the bilateral hands; 17 complex tear in the right knee, status post knee arthroscopy; degenerative join 18 disease of the left knee; diabetes; diabetic neuropathy; and hypertension. [Id. (citing 19 20 C.F.R. § 404.1520(c)).] Next, the ALJ determined that Plaintiff did not have an 20 impairment or combination of impairments that meets or medically equals the 21 severity of one of the listed impairments. [AR 26 (citing 20 C.F.R. Part 404, 22 Subpart P, Appendix 1; 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).] 23 24 25 The ALJ found that Plaintiff had the following residual functional capacity (RFC): Full range of light work as defined in 20 CFR 404.1567(b). 26 [AR 26.] Applying this RFC, the ALJ found that Plaintiff had no past relevant 27 work, but determined that based on his age (54 years old at the date of application), 28 2 1 high school education, and ability to communicate in English; she could perform 2 representative occupations such as cleaner/housekeeping (DOT 323.687-014), 3 cafeteria attendant (DOT 311.677-010), and assembler, small products (DOT 4 706.684-022), and, thus, is not disabled. [AR 32 (citing 20 CFR 404.1569 and 5 404.1569(a); see also AR 85-86.] 6 7 III. GOVERNING STANDARD Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 8 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 9 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 10 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r Soc. Sec. 11 Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted). 12 “Substantial evidence is more than a mere scintilla but less than a preponderance; it 13 is such relevant evidence as a reasonable mind might accept as adequate to support a 14 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 15 2014) (internal citations omitted). 16 The Court will uphold the Commissioner’s decision when the evidence is 17 susceptible to more than one rational interpretation. Molina v. Astrue, 674 F.3d 18 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated 19 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 20 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not 21 reverse the Commissioner’s decision if it is based on harmless error, which exists if 22 the error is “inconsequential to the ultimate nondisability determination, or if despite 23 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. 24 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal citations omitted). 25 26 IV. DISCUSSION Plaintiff contends that the ALJ improperly dismissed the November 29, 2014 27 medical source statement provided by one of Plaintiff’s treating physicians, 28 Mustaqeem A. Qazi, M.D., without stating legally sufficient reasons for doing so. 3 1 [Pltf.’s Br. at 6-7; Pltf.’s Reply at 2-5; see AR 30, 495-99.] For the reasons stated 2 below, the Court reverses the decision of the Commissioner and remands this matter 3 for further proceedings. 4 Plaintiff has been treated for issues with her hips, shoulders, and knees since 5 at least 2010. [AR 28-29; 425-65; 470-94.] Mustaqeem A. Qazi, M.D., treated 6 Plaintiff from February 1, 2012 through April 28, 2014 and completed a medical 7 source statement on November 29, 2014. [AR 495-99; 523.] Dr. Qazi diagnosed 8 Plaintiff as having: chronic pain; chronic diabetic neuropathy; chronic Polly 9 arthritis; chest pain; vertigo; and chronic nerve pain. [AR 497-98.] He opined that 10 Plaintiff is capable of lifting and carrying less than ten pounds; standing and 11 walking for less than two hours in an eight-hour day; sitting for less than two hours 12 in an eight-hour day; and will need to change positions frequently and lie down 13 every two hours. [AR 496-99.] 14 In evaluating medical opinions, generally, the opinion of a treating or 15 examining physician is entitled to greater weight than that of a non-examining 16 physician. See 20 C.F.R. §§ 404.1527(c)(1); Garrison v. Colvin, 759 F.3d 995, 17 1012 (9th Cir. 2014). In particular, “[t]he medical opinion of a claimant’s treating 18 physician is given ‘controlling weight’ so long as it ‘is well-supported by medically 19 acceptable clinical and laboratory diagnostic techniques and is not inconsistent with 20 other substantial evidence in [the Plaintiff’s] case record.’” Trevizo v. Berryhill, 871 21 F.3d 664, 675 (9th Cir. 2017) (internal citation omitted). “When a treating 22 physician’s opinion is not controlling, it is weighted according to factors such as the 23 length of the treatment relationship and the frequency of examination, the nature and 24 extent of the treatment relationship, supportability, consistency with the record, and 25 specialization of the physician.” Id. In addition, generally, “the opinion of a 26 treating physician must be given more weight than the opinion of an examining 27 physician, and the opinion of an examining physician must be afforded more weight 28 than the opinion of a reviewing physician.” Ghanim v. Colvin, 763 F.3d 1154, 1160 4 1 2 (9th Cir. 2014). To reject the uncontradicted opinion of a treating or examining physician, the 3 ALJ must provide clear and convincing reasons that are supported by substantial 4 evidence. Ghanim, 763 F.3d at 1160-61; Ryan v. Comm’r of Soc. Sec. Admin., 528 5 F.3d 1194, 1198 (9th Cir. 2008). If a treating or examining doctor’s opinion is 6 contradicted by another doctor’s opinion, an ALJ may only reject it by providing 7 specific and legitimate reasons that are supported by substantial evidence. Ghanim, 8 763 F.3d at 1161; Garrison, 759 F.3d at 1012; Bayliss v. Barnhart, 427 F.3d 1211, 9 1216 (9th Cir. 2005). “This is so because, even when contradicted, a treating or 10 examining physician’s opinion is still owed deference and will often be ‘entitled to 11 the greatest weight . . . even if it does not meet the test for controlling weight.’” 12 Garrison, 759 F.3d at 1012 (internal citation omitted). “The ALJ can meet this 13 burden by setting out a detailed and thorough summary of the facts and conflicting 14 clinical evidence, stating his interpretation thereof, and making findings.” 15 Magallanes, 881 F.2d at 751 (internal quotation omitted). 16 Given that it is undisputed that the consultative examiner and State agency 17 consultants contradicted Dr. Qazi’s opinion, the ALJ was required to provide 18 specific and legitimate reasons for evaluating the opinion as he did. Liberally 19 construed, the ALJ’s decision sets forth only two reasons for rejecting Dr. Qazi’s 20 opinion regarding Plaintiff’s limitations. 21 First, the ALJ summarily rejected Dr. Qazi’s opinion stating that his opinion 22 would “essentially preclude all work.” [AR 30.] However, the ALJ’s conclusion 23 that the limitations assessed by the treating physician would preclude even sedentary 24 work, without more, does not justify rejection of Dr. Qazi’s opinion. 25 Second, the ALJ asserted that Dr. Qazi’s opinion is “vague” and “is not 26 supported by the medical evidence as a whole, which reflects that [Plaintiff’s] 27 conditional gradually improved beginning in 2012.” [AR 30.] Specifically, the ALJ 28 notes that on April 12, 2012, Plaintiff admitted to Dr. Qazi that she was feeling 5 1 “much better.” [AR 29, 542.] Similarly, in February 2013 Plaintiff reported “feeling 2 generally well” and in March 2013 Plaintiff reported doing “very well.” [AR 29, 3 528, 532.] However, Plaintiff made these statements in response to follow-up visits 4 regarding her diabetes, not about her hips, knees, or shoulders. In other words, 5 Plaintiff’s medical records do not conflict with or otherwise detract from Dr. Qazi’s 6 opinion that Plaintiff experienced significant limitations in her ability to lift, stand, 7 walk, and sit due to pain. Thus, the ALJ’s conclusion that Dr. Qazi’s opinion is 8 inconsistent or not supported by the medical record is not a specific and legitimate 9 reason for rejecting the opinion of Dr. Qazi. V. 10 11 CONCLUSION Where “an ALJ makes a legal error, but the record is uncertain and 12 ambiguous, the proper approach is to remand the case to the agency.” Treichler v. 13 Commissioner of Social Security Admin., 775 F.3d 1090, 1105 (9th Cir. 2014). The 14 Court has the discretion to credit as true improperly rejected evidence and remand 15 for payment of benefits where the following three factors are satisfied: (1) the 16 record has been fully developed and further administrative proceedings would serve 17 no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for 18 rejecting evidence, whether claimant testimony or medical opinion; and (3) if the 19 improperly discredited evidence were credited as true, the ALJ would be required to 20 find the claimant disabled on remand. See Garrison, 759 F.3d at 1020; see also 21 Treichler, 775 F.3d at 1100-01. But even where all three factors of this “credit-as- 22 true” rule are met, the Court retains discretion to remand for further proceedings 23 “when the record as a whole creates serious doubt as to whether the claimant is, in 24 fact, disabled within the meaning of the Social Security Act.” Garrison, 759 F.3d at 25 1021; see also Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (“The 26 touchstone for an award of benefits is the existence of a disability, not the agency’s 27 legal error.”). 28 Here, the ALJ’s assessment of Plaintiff’s impairments did not reflect adequate 6 1 consideration of Dr. Qazi’s opinion. Because questions regarding the extent to 2 which Plaintiff’s physical impairments limit her ability to work remain unresolved, 3 the record has not been fully developed and remand for further proceedings is 4 appropriate. See Garrison, 759 F.3d at 1020; Dominguez v. Colvin, 808 F.3d 403, 5 407 (9th Cir. 2016) (remand for further proceedings is appropriate when the record 6 is not “fully developed”). On remand, the ALJ should reassess Dr. Qazi’s opinion 7 with respect to Plaintiff’s physical impairments. The ALJ must explain the weight 8 afforded to this medical opinion and provide legally adequate reasons for rejecting 9 or discounting it. Because this matter is being remanded for reassessment of the 10 severity of Plaintiff’s physical impairments and related medical opinion evidence, 11 the Court does not reach the remaining issue raised by Plaintiff, as to the weight 12 afforded to Natasha Creighton, M.D., except as to determine that reversal with the 13 directive for immediate payment of benefits for the period after the alleged medical 14 improvement date would not be appropriate at this time. However, the ALJ should 15 address Plaintiff’s additional contentions of error when evaluating the evidence on 16 remand. 17 Accordingly, remand for additional proceedings is appropriate. 18 19 IT IS ORDERED. 20 21 22 23 DATED: September 19, 2018 __________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 7

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