Mark Christopher Flores v. Nancy A. Berryhill, No. 5:2018cv00271 - Document 25 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is REMANDED to defendant for furthe r proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. SEE ORDER FOR DETAILS. (ch)
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Mark Christopher Flores v. Nancy A. Berryhill Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 MARK CHRISTOPHER FLORES, 13 Plaintiff, 14 15 16 v. NANCY BERRYHILL, DEPUTY COMMISSIONER OF OPERATIONS FOR THE SOCIAL SECURITY ADMINISTRATION, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 18-271-PLA MEMORANDUM OPINION AND ORDER 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on February 5, 2018, seeking review of the Commissioner’s1 denial 22 of his application for Disability Insurance Benefits (“DIB”). The parties filed Consents to proceed 23 before a Magistrate Judge on March 9, 2018, and March 10, 2018. Pursuant to the Court’s Order, 24 25 26 27 28 1 On March 6, 2018, the Government Accountability Office stated that as of November 17, 2017, Nancy Berryhill’s status as Acting Commissioner violated the Federal Vacancies Reform Act (5 U.S.C. § 3346(a)(1)), which limits the time a position can be filled by an acting official. As of that date, therefore, she was not authorized to continue serving using the title of Acting Commissioner. As of November 17, 2017, Berryhill has been leading the agency from her position of record, Deputy Commissioner of Operations. Dockets.Justia.com 1 the parties filed a Joint Submission (alternatively “JS”) on December 27, 2018, that addresses their 2 positions concerning the disputed issue in the case. The Court has taken the Joint Submission 3 under submission without oral argument. 4 5 II. 6 BACKGROUND 7 8 Plaintiff was born on September 13, 1962. [Administrative Record (“AR”) at 27.] He is unable to perform any past relevant work. [AR at 27, 78.] 9 On January 15, 2014, plaintiff filed an application for a period of disability and DIB, alleging 10 that he has been unable to work since May 1, 2009. [AR at 16.] After his application was denied 11 initially and upon reconsideration, plaintiff timely filed a request for a hearing before an 12 Administrative Law Judge (“ALJ”). [AR at 140.] A hearing was held on October 11, 2016, at which 13 time plaintiff appeared represented by an attorney, and testified on his own behalf. [AR at 34-51.] 14 In his November 14, 2016, decision, the ALJ noted that plaintiff had been found to be not disabled 15 in a January 22, 2011, decision by another ALJ (“2011 Decision”), based on a prior application for 16 a period of DIB filed on September 21, 2009. [AR at 16; see also AR at 85-93.] The ALJ noted 17 that the current application alleged an onset of disability that was within the previously adjudicated 18 period. [AR at 16.] He found that with respect to the previously adjudicated period, the prior 19 decision was final and that the same parties, law, fact, and issues are involved in the current 20 application. [Id.] He therefore dismissed plaintiff’s request for hearing with respect to the 21 previously adjudicated period, but noted that there still exists a period after the effective date of 22 the 2011 Decision during which plaintiff continued to meet the required status requirements. [Id.] 23 He then considered the period after January 23, 2011, the date of the 2011 Decision, and 24 concluded that plaintiff was not under a disability from January 23, 2011, through November 14, 25 2016, the date of the current decision. [AR at 16-28.] Plaintiff requested review of the ALJ’s 26 decision by the Appeals Council. [AR at 184-85.] When the Appeals Council denied plaintiff’s 27 request for review on January 24, 2018 [AR at 1-6], the ALJ’s decision became the final decision 28 of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) 2 1 (citations omitted). This action followed. 2 3 III. 4 STANDARD OF REVIEW 5 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 6 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 7 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 8 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 9 “Substantial evidence means more than a mere scintilla but less than a preponderance; it 10 is such relevant evidence as a reasonable mind might accept as adequate to support a 11 conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). “Where 12 evidence is susceptible to more than one rational interpretation, the ALJ’s decision should be 13 upheld.” Id. (internal quotation marks and citation omitted). However, the Court “must consider 14 the entire record as a whole, weighing both the evidence that supports and the evidence that 15 detracts from the Commissioner’s conclusion, and may not affirm simply by isolating a specific 16 quantum of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 17 2014) (internal quotation marks omitted)). The Court will “review only the reasons provided by the 18 ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not 19 rely.” Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 20 80, 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order 21 must be judged are those upon which the record discloses that its action was based.”). 22 23 IV. 24 THE EVALUATION OF DISABILITY 25 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 26 to engage in any substantial gainful activity owing to a physical or mental impairment that is 27 expected to result in death or which has lasted or is expected to last for a continuous period of at 28 least twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 3 1 42 U.S.C. § 423(d)(1)(A)). 2 3 A. THE FIVE-STEP EVALUATION PROCESS 4 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 5 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 6 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). 7 In the first step, the Commissioner must determine whether the claimant is currently engaged in 8 substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 9 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the 10 second step requires the Commissioner to determine whether the claimant has a “severe” 11 impairment or combination of impairments significantly limiting his ability to do basic work 12 activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has 13 a “severe” impairment or combination of impairments, the third step requires the Commissioner 14 to determine whether the impairment or combination of impairments meets or equals an 15 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, 16 appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the 17 claimant’s impairment or combination of impairments does not meet or equal an impairment in the 18 Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient 19 “residual functional capacity” to perform his past work; if so, the claimant is not disabled and the 20 claim is denied. Id. The claimant has the burden of proving that he is unable to perform past 21 relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets 22 this burden, a prima facie case of disability is established. Id. The Commissioner then bears 23 the burden of establishing that the claimant is not disabled because there is other work existing 24 in “significant numbers” in the national or regional economy the claimant can do, either (1) by 25 the testimony of a vocational expert (“VE”), or (2) by reference to the Medical-Vocational 26 Guidelines at 20 C.F.R. part 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The 27 determination of this issue comprises the fifth and final step in the sequential analysis. 20 28 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 4 1 F.2d at 1257. 2 3 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 4 At step one, the ALJ found that although there was some evidence that plaintiff had worked 5 since January 23, 2011 -- the date of the previous decision finding that plaintiff was not disabled -- 6 he had not engaged in substantial gainful activity since that date.2 [AR at 19.] At step two, the 7 ALJ concluded that plaintiff has the severe impairments of status-post head trauma; bipolar 8 disorder; and depressive disorder. 9 impairments of hip pain and degenerative changes in the spine to be non-severe. [AR at 20.] He 10 further noted that even if these impairments were severe, they caused “such minimal limitations 11 as to still be performable under the jobs titles provided by the” VE. [Id.] At step three, the ALJ 12 determined that plaintiff does not have an impairment or a combination of impairments that meets 13 or medically equals any of the impairments in the Listing. [AR at 20.] Adopting the residual 14 functional capacity (“RFC”)3 assessment set forth in the 2011 Decision, the ALJ further found that 15 plaintiff retained the RFC to perform a full range of work at all exertional levels with the following 16 nonexertional limitations: he “can perform simple, repetitive tasks that are not fast-paced, mentally 17 or physically, or that require math or computers; and he cannot perform rapid assembly line work.” 18 [AR at 21.] At step four, the ALJ concluded that plaintiff is unable to perform any of his past 19 relevant work. [AR at 27, 78.] At step five, based on plaintiff’s RFC, vocational factors, and the 20 VE’s testimony from the prior hearing and 2011 Decision, the ALJ found that there are jobs 21 existing in significant numbers in the national economy that plaintiff can perform, including work 22 as a “floor waxer” (Dictionary of Occupational Titles (“DOT”) No. 381.687-034), and as a “hand [Id.] He also found plaintiff’s medically determinable 23 24 25 26 27 28 2 The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through December 31, 2017. [AR at 19.] 3 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, 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 n.2 (9th Cir. 2007) (citation omitted). 5 1 packager” (DOT No. 920.587-018). [AR at 28, 79.] Accordingly, the ALJ determined that plaintiff 2 was not disabled at any time from January 23, 2011, the date of the last decision, through 3 November 14, 2016, the date of the current decision. [AR at 28.] 4 5 V. 6 THE ALJ’S DECISION 7 Plaintiff contends that the ALJ erred when he failed to consider relevant and substantial 8 evidence supporting plaintiff’s claim of disability in his assessment of plaintiff’s RFC. [JS at 4.] 9 As set forth below, the Court agrees with plaintiff and remands for further proceedings. 10 11 A. THE ALJ’S RFC DETERMINATION 12 As discussed above, the ALJ found plaintiff’s medically determinable impairments of low 13 back and hip pain to be non-severe, in part because a July 2, 2012, neurological examination 14 determined that plaintiff was “neurologically intact,” with “no physical or neurological deficits,” and 15 the neurologist opined that plaintiff had no exertional limitations. [AR at 20 (citing AR at 401-03).] 16 The ALJ also observed that an April 22, 2014, consultative orthopedic examination showed “no 17 evidence of significant physical limitations, although there was evidence of some degenerative 18 changes in the lumbar spine.” [Id. (citing (AR at 472-80).] The ALJ stated that plaintiff received 19 “minimal treatment for his alleged hip and low back pain throughout the record,” and reported only 20 taking over-the-counter extra strength Tylenol for pain. [Id.] Additionally, “no aggressive treatment 21 was recommended or anticipated for these conditions.” [Id.] 22 Plaintiff argues that the ALJ’s decision is not supported by substantial evidence as the ALJ 23 “failed to properly consider relevant and substantial evidence of record supporting Plaintiff’s claim 24 of disability in the ALJ’s assessment of Plaintiff’s [RFC].” [JS at 4.] He notes that “[i]nstead of 25 properly considering the relevant medical evidence of record, as it existed at the time of this 26 hearing in 2016, the ALJ chose[] to adopt the findings of a prior [ALJ] from a decision dated 27 January 22, 2011, finding Plaintiff, a 54 year old, capable of sustaining medium work activity, 28 specifically contemplating the ability to stand and walk the entire work day, and lift and/or carry 6 1 up to 50 pounds one-third of the work day.” [Id.] Specifically, plaintiff argues that the ALJ failed 2 to properly consider his “degenerative disc disease of the lumbar spine with moderate to severe 3 neuroforaminal narrowing” as reflected on a March 26, 2015, MRI report. [JS at 5 (citing AR at 4 534).] Plaintiff contends that the MRI report “is clearly substantial evidence of a new and 5 additional impairment arising subsequent to the prior ALJ denial in 2011.” [Id. (citing AR at 471, 6 494, 538).] He further states that the conditions reflected in the MRI report are also documented 7 in a January 8, 2014, x-ray of plaintiff’s lumbar spine. [Id. (citing AR at 471).] He notes that the 8 April 22, 2014, report of the orthopedic consultative examiner also reflected that plaintiff 9 complained of back pain and had a decreased range of motion of his lumbar spine. [Id. (citing AR 10 at 472, 474).] 11 Defendant responds that plaintiff’s “allegation of error in regard to ALJ Schloss’ [RFC] 12 assessment ignores the basis for this finding -- the ALJ’s legal duty to follow the previous ALJ’s 13 findings under Acquiescence Ruling . . . 97-4(9) and Chavez v. Bowen, 844 F.2d 691 (9th Cir. 14 1988).” [JS at 7.] Defendant also contends that for the time period after January 22, 2011, other 15 than a change in age category as acknowledged by the ALJ [see AR at 17], plaintiff failed to prove 16 “‘changed circumstances’ in order to rebut the Chavez presumption that he continued to be ‘not 17 disabled.’” [Id. (citing AR at 16).] Defendant argues that “[a]bsent a showing of ‘changed 18 circumstances’ and evidence that Plaintiff’s impairments were more limiting than in January 2011, 19 ALJ Schloss reasonably adopted the previous ALJ’s assessment that plaintiff was capable of only 20 ‘simple, repetitive tasks that are not fast-paced, mentally or physically, or require math or 21 computers; and he cannot perform rapid assembly line work.’” [JS at 9 (citing AR at 21, 89).] 22 Morever, defendant states that the evidence as a whole “does not indicate that [plaintiff] is 23 incapable of medium work,” “[a]ll of the examining medical source opinions indicated that Plaintiff 24 did not have any significant physical limitations precluding ‘medium work,’” and the medical source 25 opinions, including Dr. Flanagan (consultative examining orthopedist) in May 2012 [AR at 382-87], 26 Dr. Moore (consultative examining neurologist) in July 2012 [AR at 401-05], Dr. Schoene 27 (consultative examining orthopedist) in April 2014 [AR at 472-80], the state agency reviewing 28 doctors in June 2014, and the state agency reviewing doctors in September 2014, all supported 7 1 the ALJ’s findings “and there were no treating source opinions to the contrary.” [JS at 12-13 (citing 2 AR at 102-07, 116-24, 427-76).] Defendant does not discuss plaintiff’s contention that the ALJ 3 should have considered the 2015 MRI report in making his RFC determination as that report 4 reflected a changed condition. 5 6 B. ANALYSIS 7 In his April 22, 2014, report, the consultative orthopedic examiner stated that he had 8 reviewed a May 25, 2012, orthopedic evaluation in which plaintiff’s “chief complaints were right 9 hip pain, low back pain, and left shoulder pain,” and the diagnoses were “lumbar myofascial 10 sprain; lumbar degenerative joint disease; left shoulder muscular strain; and right hip contusion.” 11 [AR at 472 (citing AR at 385).] A review of the May 25, 2012, orthopedic evaluation reveals that 12 x-rays of plaintiff’s lumbar spine had been taken, which revealed “some straightening of the lumbar 13 spine[,] . . . [and] [s]pondylosis . . . at the L5-S1 level with intervertebral disc space narrowing 14 noted at L5-S1 level.” [AR at 385.] The Court agrees with plaintiff that the 2012 x-ray supports 15 plaintiff’s position that the 2015 MRI depicting “degenerative disc disease of the lumbar spine with 16 moderate to severe neuroforaminal narrowing” was indicative of a material change in his condition. 17 In fact, at the hearing, counsel specifically stated that he was relying on this MRI report “to show 18 material change.” [AR at 44.] In his decision, however, the ALJ never even mentioned the 2015 19 MRI results, which arguably support plaintiff’s alleged limitations as a result of his back pain, and 20 appear to show that plaintiff’s condition had changed in severity from the May 25, 2012, x-ray, and 21 even from the time of the latest consultative examination in 2014. 22 While an ALJ is not required to address all evidence presented to him, he must explain why 23 significant and probative evidence has been rejected. Vincent v. Heckler, 739 F.2d 1393, 1395 24 (9th Cir. 1984) (citation omitted). “[A]n explanation from the ALJ of the reason why probative 25 evidence has been rejected is required so that . . . [the] [C]ourt can determine whether the reasons 26 for rejection were improper.” Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981) (citation 27 omitted). Moreover, an ALJ must consider all of the relevant evidence in the record and may not 28 point to only those portions of the record that bolster his findings. See, e.g., Holohan v. 8 1 Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) (holding that an ALJ cannot selectively rely 2 on some entries in plaintiff’s records while ignoring others); Aukland v. Massanari, 257 F.3d 1033, 3 1035 (9th Cir. 2001) (“[T]he [ALJ]’s decision ‘cannot be affirmed simply by isolating a specific 4 quantum of supporting evidence.’”) (citing Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 5 1998)); see also Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (it is impermissible for 6 the ALJ to develop an evidentiary basis by “not fully accounting for the context of materials or all 7 parts of the testimony and reports”); Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004) 8 (“The ALJ is not entitled to pick and choose from a medical opinion, using only those parts that 9 are favorable to a finding of nondisability.”); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 10 1975) (an ALJ is not permitted to reach a conclusion “simply by isolating a specific quantum of 11 supporting evidence.”); Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982) (“[A]n ALJ must 12 weigh all the evidence and may not ignore evidence that suggests an opposite conclusion.”) 13 (citation omitted); Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984) (“The ALJ is not entitled 14 to pick and choose from a medical opinion, using only those parts that are favorable to a finding 15 of nondisability.”). 16 In this case, in addition to plaintiff’s complaints of back pain and resulting limitations (e.g., 17 he alleged “difficulties with standing, squatting, kneeling, and walking further than 2 miles at a 18 time” [AR at 21]), the 2012 x-ray; the May 2012 orthopedic consultative examiner’s findings of 19 “pain with axial rotation of the trunk,” flexion and extension of the back “limited secondary to pain,” 20 and “tenderness to palpation of the lumbar paraspinal muscles as well as spinous processes”; the 21 April 2014 consultative examiner’s finding of a decreased range of motion in plaintiff’s lumbar 22 spine; and the 2015 MRI showing degenerative disc disease of the lumbar spine with moderate- 23 to-severe neuroforaminal narrowing, all seem to reflect that plaintiff’s back condition has changed 24 for the worse over time. In any event, none of the consultative or reviewing examiners as 25 discussed above and to whom the ALJ apparently gave great weight with respect to his finding 26 that plaintiff’s back impairment was non-severe, had the benefit of that 2015 MRI in forming their 27 opinions that plaintiff was capable of at least medium exertional level work, and the ALJ did not 28 provide an explanation for not mentioning this seemingly probative and significant diagnostic 9 1 report. 2 Because the ALJ did not provide any rationale for rejecting what would appear to be 3 significant and probative evidence of changes in plaintiff’s physical condition and resulting 4 limitations, remand is warranted on this issue. 5 6 VI. 7 REMAND FOR FURTHER PROCEEDINGS 8 The Court has discretion to remand or reverse and award benefits. Trevizo v. Berryhill, 871 9 F.3d 664, 682 (9th Cir. 2017) (citation omitted). Where no useful purpose would be served by 10 further proceedings, or where the record has been fully developed, it is appropriate to exercise this 11 discretion to direct an immediate award of benefits. Id. (citing Garrison, 759 F.3d at 1019). Where 12 there are outstanding issues that must be resolved before a determination can be made, and it 13 is not clear from the record that the ALJ would be required to find plaintiff disabled if all the 14 evidence were properly evaluated, remand is appropriate. See Garrison, 759 F.3d at 1021. 15 In this case, there is an outstanding issue that must be resolved before a final determination 16 can be made. In an effort to expedite these proceedings and to avoid any confusion or 17 misunderstanding as to what the Court intends, the Court will set forth the scope of the remand 18 proceedings. First, if the ALJ determines it is warranted, the ALJ shall order a consultative 19 physical examination or examinations, with the appropriate specialist(s) being provided with all of 20 plaintiff’s medical records, including the 2015 MRI report. Second, the ALJ on remand shall 21 reassess the entire medical record (including, but not limited to, the 2015 MRI report) relating to 22 plaintiff’s physical impairments, to determine whether plaintiff has shown a changed physical 23 condition since the time of the 2011 Decision sufficient to overcome the Chavez presumption. 24 Finally, based on his reevaluation of the medical record, and his consideration of plaintiff’s physical 25 impairments if any, on his limitations, the ALJ shall reassess plaintiff’s RFC and determine, at step 26 five, with the assistance of a VE if necessary, whether there are jobs existing in significant 27 28 10 1 numbers in the national economy that plaintiff can still perform.4 See Shaibi v. Berryhill, 870 F.3d 2 874, 882-83 (9th Cir. 2017). 3 4 VII. 5 CONCLUSION 6 IT IS HEREBY ORDERED that: (1) plaintiff’s request for remand is granted; (2) the 7 decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further 8 proceedings consistent with this Memorandum Opinion. 9 10 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 11 12 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 13 14 DATED: January 9, 2019 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 4 28 Nothing herein is intended to disrupt the ALJ’s step four finding that plaintiff is unable to perform his past relevant work. [AR at 27.] 11
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