Eleanoradianne Robinson v. Andres Saul, No. 5:2020cv01080 - Document 24 (C.D. Cal. 2021)
Court Description: MEMORANDUM DECISION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered in Plaintiffs favor and that this action be remanded for further proceedings consistent with this Memorandum Decision. (es)
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Eleanoradianne Robinson v. Andres Saul Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ELEANORADIANNE R.,1 Plaintiff, 12 13 v. 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 18 I. ) Case No. EDCV 20-1080 (JPR) ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 19 denying her applications for Social Security disability insurance 20 benefits (“DIB”) and supplemental security income benefits 21 (“SSI”). 22 Stipulation, filed April 2, 2021, which the Court has taken under 23 submission without oral argument. 24 below, the Commissioner’s decision is reversed and this matter is The matter is before the Court on the parties’ Joint For the reasons discussed 25 26 27 28 1 Plaintiff’s name is partially redacted in line with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 remanded for further proceedings. 2 II. BACKGROUND Plaintiff was born in 1969. 3 4 222, 226.) 5 housekeeper, and merchandiser. (Administrative Record (“AR”) She completed high school and worked as a cashier, (AR 270.) On August 3, 2015, Plaintiff applied for DIB and SSI, 6 7 alleging that she had been unable to work since June 5, 2015, 8 because she had “problems with [her] feet” and “blockage of [her] 9 legs” and couldn’t stand or walk for long. (AR 269; see also AR After her applications were denied initially (AR 146- 10 222-32.) 11 50) and on reconsideration (AR 153-58), she requested a hearing 12 before an Administrative Law Judge (AR 160, 162). 13 on February 21, 2019, at which Plaintiff, who was not represented 14 by counsel, testified, as did a vocational expert. 15 68.) 16 Plaintiff not disabled. 17 review (AR 218-19), which was denied on March 31, 2020 (AR 1-6). 18 This action followed. 19 III. STANDARD OF REVIEW 20 One was held (See AR 39- In a written decision issued March 21, 2019, the ALJ found (AR 20-31.) She sought Appeals Council Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 25 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 26 means such evidence as a reasonable person might accept as 27 adequate to support a conclusion. 28 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 The ALJ’s findings and Substantial evidence Richardson, 402 U.S. at 401; It 1 is “more than a mere scintilla, but less than a preponderance.” 2 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 3 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 4 meaning of ‘substantial’ in other contexts, the threshold for 5 such evidentiary sufficiency is not high.” 6 139 S. Ct. 1148, 1154 (2019). 7 evidence supports a finding, the reviewing court “must review the 8 administrative record as a whole, weighing both the evidence that 9 supports and the evidence that detracts from the Commissioner’s “[W]hatever the Biestek v. Berryhill, To determine whether substantial Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 10 conclusion.” 11 1998). 12 or reversing,” the reviewing court “may not substitute its 13 judgment” for the Commissioner’s. 14 IV. 15 “If the evidence can reasonably support either affirming Id. at 720-21. THE EVALUATION OF DISABILITY People are “disabled” for Social Security purposes if they 16 are unable to engage in any substantial gainful activity owing to 17 a physical or mental impairment that is expected to result in 18 death or has lasted, or is expected to last, for a continuous 19 period of at least 12 months. 20 v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 42 U.S.C. § 423(d)(1)(A); Drouin 21 A. The Five-Step Evaluation Process 22 An ALJ follows a five-step sequential evaluation process to 23 assess whether someone is disabled. 20 C.F.R. §§ 404.1520(a)(4), 24 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 25 1995) (as amended Apr. 9, 1996). 26 Commissioner must determine whether the claimant is currently 27 engaged in substantial gainful activity; if so, the claimant is 28 not disabled and the claim must be denied. In the first step, the 3 §§ 404.1520(a)(4)(i), 1 416.920(a)(4)(i). 2 If the claimant is not engaged in substantial gainful 3 activity, the second step requires the Commissioner to determine 4 whether the claimant has a “severe” impairment or combination of 5 impairments significantly limiting her ability to do basic work 6 activities; if not, a finding of not disabled is made and the 7 claim must be denied. 8 416.920(a)(4)(ii) & (c). §§ 404.1520(a)(4)(ii) & (c), If the claimant has a “severe” impairment or combination of 9 10 impairments, the third step requires the Commissioner to 11 determine whether the impairment or combination of impairments 12 meets or equals an impairment in the Listing of Impairments 13 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix 14 1; if so, disability is conclusively presumed and benefits are 15 awarded. §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d). If the claimant’s impairment or combination of impairments 16 17 does not meet or equal one in the Listing, the fourth step 18 requires the Commissioner to determine whether the claimant has 19 sufficient residual functional capacity (“RFC”)2 to perform her 20 past work; if so, she is not disabled and the claim must be 21 denied. 22 has the burden of proving she is unable to perform past relevant 23 work. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that 24 25 26 27 28 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545(a)(1), 416.945(a)(1); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 burden, a prima facie case of disability is established. 2 Id. If that happens or if the claimant has no past relevant 3 work, the Commissioner bears the burden of showing that the 4 claimant is not disabled because she can perform other 5 substantial gainful work available in the national economy, the 6 fifth and final step of the sequential analysis. 7 §§ 404.1520(a)(4)(v), 404.1560(b), 416.920(a)(4)(v), 416.960(b). 8 B. The ALJ’s Application of the Five-Step Process 9 At step one, the ALJ found that Plaintiff had not engaged in 10 substantial gainful activity since June 5, 2015, the alleged 11 onset date; her date last insured was December 31, 2017. 12 23.) 13 impairments of cirrhosis, scoliosis, degenerative disc disease of 14 the cervical spine, “lumbar radiculopathy affecting the right L4 15 and L5 nerve roots,” “distal polyneuropathy,”3 “history of left 16 cerebral subarachnoid and extra-axial hemorrhage4 and hematoma,” 17 “cognitive disorder secondary to subarachnoid brain hemorrhage,” 18 and “history of alcohol abuse.” 19 (AR At step two, she determined that Plaintiff had severe (Id.) At step three, she found that Plaintiff’s impairments did 20 3 21 22 23 24 25 26 27 28 Polyneuropathy results from peripheral-nerve damage. What Is Polyneuropathy?, Healthline, https://www.healthline.com/ health/polyneuropathy (last visited June 11, 2021). Distal polyneuropathy causes burning or tingling sensations, especially in the feet and hands. (Id.) 4 Extra-axial hemorrhage is bleeding that occurs within the skull but outside of the brain tissue. Intracranial Hemorrhage, Wikipedia, https://en.wikipedia.org/wiki/Intracranial_hemorrhage (last visited June 11, 2021). One type, subarachnoid hemorrhage, is bleeding in the space between the brain and the surrounding membrane. Subarachnoid Hemorrhage, Mayo Clinic, https:// www.mayoclinic.org/diseases-conditions/subarachnoid-hemorrhage/ symptoms-causes/syc-20361009 (last visited June 11, 2021). 5 1 not meet or equal any of the impairments in the Listing. 2 24.) 3 perform light work (AR 23- At step four, she determined that Plaintiff had the RFC to 4 except she can stand and walk four hours, and she needs 5 an assistive device for long distance (more than 100 6 feet) ambulation to avoid falls. 7 occasional use of bilateral lower extremities (foot 8 pedals), occasionally climb ramps and stairs, cannot walk 9 on uneven terrain, occasionally crouch, crawl, kneel, and 10 cannot work at unprotected heights and cannot climb 11 ladders, ropes of [sic] scaffolds. She can frequently 12 reach, handle, finger, and feel. She is limited to 13 simple, routine tasks, and occasional interaction with 14 supervisors, coworkers and the public. She is limited to 15 (AR 24.) The ALJ found that Plaintiff was unable to perform any 16 past relevant work, but she could work at several jobs 17 “exist[ing] in significant numbers in the national economy.” 18 (AR 29.) 19 V. Accordingly, she found her not disabled. (AR 30-31.) DISCUSSION 20 Plaintiff alleges that the ALJ erred in evaluating her 21 subjective symptom statements and assessing the opinions of 22 treating physician Robert Kounang. 23 26.) 24 specific weight to Dr. Kounang’s opinions or address his findings 25 that Plaintiff was limited to sedentary work and was unable to 26 climb stairs, walk “efficiently/long distance,” or sit “long 27 term.” 28 the doctor’s findings conflicted with the RFC. (See J. Stip. at 4-14, 20- As discussed below, the ALJ erred by failing to assign any (AR 731.) The omission was not harmless because some of 6 Accordingly, 1 remand is necessary. 2 A. The ALJ Erred in Failing to Assign Any Particular 3 Weight to Dr. Kounang’s Opinions or Explain Why She Did 4 Not Incorporate Them into the RFC 5 1. Relevant background On April 13, 2017, Dr. Kounang, who specialized in “physical 6 7 medicine and rehabilitation” and had been treating Plaintiff 8 since March 2016, conducted a “Physical Disability Evaluation” of 9 her. (AR 419-20, 730-31.) She complained that she was “unable 10 to stand/climb stairs” or walk “long distance” because of 11 polyneuropathy and a “[c]ompression fracture” of a vertebra. 12 (AR 730.) 13 that she was unable to participate in physical therapy. She reported that she had had a stroke in 2016 and (Id.) During her examination, Plaintiff’s upper-extremity strength 14 15 was “3/5” on the right and “3+/5” on the left, her lower- 16 extremity strength was “3/5” bilaterally, she had decreased 17 sensation bilaterally, and she walked with a slow gait. 18 730.) 19 to walk efficiently/long distance,” she was unable to climb 20 stairs or sit “long term,” and she was “limited to sedentary 21 work.” 22 to — or even mention — Dr. Kounang’s opinions. Dr. Kounang opined that her condition did “not allow her (AR 731.) 2. 23 24 (AR The ALJ did not assign any particular weight (AR 27-29.) Applicable law Three types of physicians may offer opinions in Social 25 Security cases: those who directly treated the plaintiff, those 26 who examined but did not treat the plaintiff, and those who did 27 neither. 28 opinion is generally entitled to more weight than an examining See Lester, 81 F.3d at 830. 7 A treating physician’s 1 physician’s, and an examining physician’s opinion is generally 2 entitled to more weight than a nonexamining physician’s. 3 see §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2).5 4 Id.; The ALJ may discount a physician’s opinion regardless of 5 whether it is contradicted. Magallanes v. Bowen, 881 F.2d 747, 6 751 (9th Cir. 1989); see also Carmickle v. Comm’r, Soc. Sec. 7 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). 8 opinion is not contradicted by other medical-opinion evidence, 9 however, it may be rejected only for a “clear and convincing” When a doctor’s 10 reason. 11 Carmickle, 533 F.3d at 1164 (citing Lester, 81 F.3d at 830-31). 12 When it is contradicted, the ALJ need provide only a “specific 13 and legitimate” reason for discounting it. 14 at 1164 (citing Lester, 81 F.3d at 830-31). 15 doctor’s opinion, moreover, depends on whether it is consistent 16 with the record and accompanied by adequate explanation, among 17 other things. 18 Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (factors in assessing 19 physician’s opinion include length, nature, and extent of 20 treatment relationship and frequency of examination). 21 Magallanes, 881 F.2d at 751 (citations omitted); Carmickle, 533 F.3d The weight given a See §§ 404.1527(c), 416.927(c); see also Orn v. In evaluating doctors’ opinions, an ALJ must state what See §§ 22 weight she has given each opinion and explain why. 23 404.1527(c)(2), 416.927(c)(2) (requiring ALJ to “give good 24 25 26 27 28 5 For claims filed on or after March 27, 2017, the rules in §§ 404.1520c and 416.920c (not §§ 404.1527 and 416.927) apply. See §§ 404.1520c, 416.920c (evaluating opinion evidence for claims filed on or after Mar. 27, 2017). Plaintiff’s claims were filed before March 27, 2017, however, and the Court therefore analyzes them under former §§ 404.1527 and 416.927. 8 1 reasons” for rejecting treating doctor’s opinion); SSR 96–2p, 2 1996 WL 374188, at *5 (July 2, 1996) (noting that ALJ must “give 3 good reasons . . . for the weight given” to treating doctors’ 4 opinions); Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 5 2001) (as amended) (“Under 96-2p, reasons must be ‘sufficiently 6 specific to make clear . . . the weight the adjudicator gave to 7 the treating source’s medical opinion and the reasons for that 8 weight.’”). 9 medical opinion or set forth specific, legitimate reasons for An ALJ errs when she “does not explicitly reject a 10 crediting one medical opinion over another.” 11 759 F.3d 995, 1012 (9th Cir. 2014). 3. 12 Garrison v. Colvin, Analysis 13 In light of the ALJ’s failure to specifically assign any 14 particular weight to Dr. Kounang’s opinions — much less “give 15 good reasons” for apparently rejecting (or not considering) 16 portions of them — the ALJ erred.6 17 Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) (finding 18 reversible error when ALJ didn’t “even mention” treating doctor 19 or his notes); Jose Luis V.H. v. Saul, No. EDCV 18-2618-KS, 2020 20 WL 247315, at *4-5 (C.D. Cal. Jan. 16, 2020) (finding reversible Id.; see also Marsh v. 21 22 23 24 25 26 27 28 6 Defendant acknowledges that the ALJ never addressed Dr. Kounang’s opinions but argues that she “implicitly rejected” them by noting that treating doctor Julia Black had found Plaintiff not disabled and that Plaintiff then went to another doctor — “apparently, Dr. Kounang — who would fill out disability papers for her.” (J. Stip. at 25.) But although the ALJ’s decision notes that Dr. Black advised Plaintiff to get a second opinion and that Plaintiff “left mad and angry” and stated that she was “not coming back” (AR 28 (citing AR 441); see also AR 27), it does not even suggest that the ALJ rejected Dr. Kounang’s opinions because they resulted from forum shopping. 9 1 error when ALJ failed to specifically mention doctor’s opinion or 2 give it any weight). 3 The error was not harmless. Dr. Kounang’s statements that 4 Plaintiff was unable to climb stairs or sit “long term” and was 5 limited to sedentary work (AR 731) conflicted with the RFC, which 6 contained no sitting limitation and allowed occasional stair 7 climbing and a range of light work (AR 24). 8 whether Dr. Kounang’s opinion that Plaintiff could not walk 9 “efficiently/long distance” (AR 731) conflicted with the RFC’s And it is unclear 10 “stand and walk four hours” limitation (AR 24). The VE was not 11 asked at the hearing whether any available work with those 12 additional limitations existed. 13 certain sedentary jobs were available with Plaintiff’s RFC (AR 14 64), he was not asked whether sedentary work with Dr. Kounang’s 15 additional opined limitations would eliminate all work. 16 the Court cannot conclude that the ALJ would have reached the 17 same result had she considered and credited Dr. Kounang’s 18 opinions. 19 treating doctor’s opinion was not harmless because ALJ did not 20 consider doctor’s statement that condition rendered plaintiff 21 “pretty much nonfunctional”). Although the VE testified that Thus, Marsh, 792 F.3d at 1173 (ALJ’s failure to discuss 22 B. Remand for Further Proceedings Is Appropriate 23 When an ALJ errs, the Court “ordinarily must remand for 24 further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 1045 25 (9th Cir. 2017) (as amended Jan. 25, 2018); see also Harman v. 26 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as amended). 27 Court has discretion to do so or to award benefits under the 28 “credit as true” rule. Leon, 880 F.3d at 1044 (citation 10 The 1 omitted). “[A] direct award of benefits was intended as a rare 2 and prophylactic exception to the ordinary remand rule[.]” 3 at 1045. 4 proceedings turns upon the likely utility of such proceedings,” 5 Harman, 211 F.3d at 1179, and when an “ALJ makes a legal error, 6 but the record is uncertain and ambiguous, the proper approach is 7 to remand the case to the agency,” Leon, 880 F.3d at 1045 8 (citation omitted). Id. The “decision of whether to remand for further Here, further administrative proceedings would serve the 9 10 useful purpose of allowing the ALJ to give proper consideration 11 to Dr. Kounang’s opinions. 12 “serious doubt” about whether a plaintiff is disabled, remand for 13 further proceedings is appropriate. 14 1021. 15 the opined limitations, which were contradicted by the other 16 opinion evidence summarized by the ALJ (AR 27-29), suggesting 17 that Plaintiff could perform a range of light work. 18 Defendant points out (J. Stip. at 28 n.8), Plaintiff’s drug and 19 alcohol abuse may have contributed to her impairments.7 In addition, when a court has See Garrison, 759 F.3d at Dr. Kounang’s evaluation contained little explanation for Moreover, as Thus, 20 7 21 22 23 24 25 26 27 28 Under 42 U.S.C. § 423(d)(2)(C), a claimant “shall not be considered to be disabled . . . if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner’s determination that the individual is disabled.” Should the ALJ preliminarily find Plaintiff disabled on remand, she should consider whether § 423(d)(2)(C) applies based on her finding that Plaintiff suffered from a “history of alcohol abuse.” (AR 23.) See §§ 404.1535, 416.935; Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001) (discussing alcohol abuse in context of § 423(d)(2)(C)). Although the ALJ also noted Plaintiff’s tobacco abuse (AR 25), it is less clear that tobacco counts as a drug for purposes of § 423(d)(2)(C). Cf. Bean v. Astrue, No. 08-0978-CV-W-ODS., 2009 WL 4430062, at *3 (W.D. Mo. (continued...) 11 1 remand is appropriate. If the ALJ chooses to discount Dr. 2 Kounang’s opinions on remand, she can then provide an adequate 3 discussion of the reasons why. Plaintiff also challenges the ALJ’s evaluation of her 4 5 subjective symptom statements. (J. Stip. at 22-25 & 26.) The 6 ALJ should reevaluate those once she has properly considered Dr. 7 Kounang’s opinions, so the Court does not address that argument. 8 See Negrette v. Astrue, No. EDCV 08-0737 RNB., 2009 WL 2208088, 9 at *2 (C.D. Cal. July 21, 2009) (finding it unnecessary to 10 address further disputed issues when court found that ALJ failed 11 to properly consider treating doctor’s opinion and lay-witness 12 testimony). 13 VI. 14 CONCLUSION Consistent with the foregoing and under sentence four of 42 15 U.S.C. § 405(g), IT IS ORDERED that judgment be entered in 16 Plaintiff’s favor and that this action be remanded for further 17 proceedings consistent with this Memorandum Decision. 18 19 DATED: -XQH 20 JEAN ROSENBLUTH U S Magistrate Judge U.S. 21 22 23 24 25 26 27 28 7 (...continued) Nov. 24, 2009) (discussing tobacco in context of § 423(d)(2)(C)). 12
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