Nunzia Tina Jepsen v. Carolyn W. Colvin, No. 8:2016cv00384 - Document 20 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Nunzia Tina Jepsen 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 12 13 14 15 16 NUNZIA TINA JEPSEN, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) NO. SA CV 16-384-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on March 2, 2016, seeking review of 26 the Commissioner’s denial of benefits. The parties consented to 27 proceed before a United States Magistrate Judge on April 5, 2016. 28 Plaintiff filed a motion for summary judgment on July 20, 2016. Dockets.Justia.com 1 Defendant filed a motion for summary judgment on August 19, 2016. 2 Court has taken the motions under submission without oral argument. 3 The See L.R. 7-15; “Order,” filed March 4, 2016. 4 5 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 6 7 Plaintiff asserts disability since January 18, 2011, based on 8 alleged physical and mental impairments (Administrative Record 9 (“A.R.”) 150-53, 164). Dr. Daniel Capen treated Plaintiff monthly 10 from October 2012 through at least December 2013 and completed a 11 “Physical Residual Functional Capacity Questionnaire” on December 20, 12 2013 (A.R. 797-801; see A.R. 309-55, 414-23, 453-531, 731-56, 765-78, 13 786-96 (treatment records)). 14 (1) would be limited to lifting no more than 10 pounds occasionally, 15 standing no more than 20 minutes at a time, and sitting no more than 16 20 minutes at a time, for a total of two hours of sitting and two 17 hours of standing/walking in a normal workday (A.R. 799-800); 18 (2) would need to walk around every hour for five minutes at a time, 19 and would need to shift positions from sitting to standing at will 20 (A.R. 799); (3) would need to take unscheduled breaks from work every 21 two to three days for 12 to 18 hours at a time (A.R. 799-800); and 22 (4) would miss an average of three days of work each month (A.R. 801). 23 As support for these opinions, Dr. Capen referenced clinical findings 24 and objective signs, including MRI findings (A.R. 250), operative 25 reports regarding Plaintiff’s shoulders (A.R. 216-306), x-ray findings 26 (A.R. 533-34), and decreased ranges of motion in Plaintiff’s bilateral 27 shoulders, neck, and low back (A.R. 311, 335, 346, 415, 454, 459, 466, 28 483, 489, 500, 505, 510, 520-21, 732, 737, 787) (A.R. 797). Dr. Capen opined that Plaintiff: 2 1 An Administrative Law Judge (“ALJ”) reviewed the record and heard 2 testimony from Plaintiff, a medical expert, and a vocational expert 3 (A.R. 24-35, 41-73). 4 impairments which limit her to the following residual functional 5 capacity: The ALJ found that Plaintiff has severe physical 6 7 [Plaintiff can] occasionally lift and/or carry 20 pounds; 8 frequently lift and/or carry 10 pounds; stand and/or walk 6 9 hours in an 8-hour workday; sit for 6 hours in an 8-hour 10 workday, with the ability to stand and stretch every hour 11 estimated to take 1 to 3 minutes per hour; frequently stoop, 12 crouch, kneel, and climb stairs; never crawl or climb 13 ladders, ropes, and scaffolds; occasionally work overhead 14 with the left upper extremity; never work overhead with the 15 right upper extremity; frequently push and pull at the above 16 weights; and avoid concentrated exposure to hazardous 17 machinery and unprotected heights. 18 19 (A.R. 26, 28). 20 21 The ALJ gave “little weight” to Dr. Capen’s opinions, instead 22 giving “great weight” to the testimony of a non-examining medical 23 expert (A.R. 28-33; see A.R. 56-57). 24 who has the functional capacity the ALJ found Plaintiff to retain 25 could perform Plaintiff’s past relevant work (A.R. 34 (adopting 26 vocational expert testimony at A.R. 68-70)). 27 /// 28 /// 3 The ALJ determined that a person 1 2 The Appeals Council considered additional evidence, but denied review (A.R. 1-6). 3 4 STANDARD OF REVIEW 5 6 Under 42 U.S.C. section 405(g), this Court reviews the 7 Administration’s decision to determine if: (1) the Administration’s 8 findings are supported by substantial evidence; and (2) the 9 Administration used correct legal standards. See Carmickle v. 10 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 11 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 12 682 F.3d 1157, 1161 (9th Cir. 2012). 13 relevant evidence as a reasonable mind might accept as adequate to 14 support a conclusion.” 15 (1971) (citation and quotations omitted); see also Widmark v. 16 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 17 18 If the evidence can support either outcome, the court may 19 not substitute its judgment for that of the ALJ. 20 Commissioner’s decision cannot be affirmed simply by 21 isolating a specific quantum of supporting evidence. 22 Rather, a court must consider the record as a whole, 23 weighing both evidence that supports and evidence that 24 detracts from the [administrative] conclusion. But the 25 26 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 27 quotations omitted). 28 /// 4 1 Where, as here, the Appeals Council considered additional 2 evidence but denied review, the additional evidence becomes part of 3 the record for purposes of the Court's analysis. 4 Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers 5 new evidence in deciding whether to review a decision of the ALJ, that 6 evidence becomes part of the administrative record, which the district 7 court must consider when reviewing the Commissioner's final decision 8 for substantial evidence”; expressly adopting Ramirez v. Shalala, 8 9 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d See Brewes v. 10 1228, 1231 (2011) (courts may consider evidence presented for the 11 first time to the Appeals Council “to determine whether, in light of 12 the record as a whole, the ALJ’s decision was supported by substantial 13 evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953, 14 957 n.7 (9th Cir. 1993) (“the Appeals Council considered this 15 information and it became part of the record we are required to review 16 as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 17 18 DISCUSSION 19 20 I. 21 The ALJ Failed to State Sufficient Reasons for Rejecting Dr. Capen’s Opinions. 22 23 The ALJ’s only stated reasons for rejecting Dr. Capen’s opinions 24 were that the opinions assertedly had been “made solely in the context 25 of a workers’ compensation claim and . . . [were] not consistent with 26 the record as a whole” (A.R. 33). 27 reasons are legally insufficient. 28 /// As discussed below, these stated 5 1 A treating physician’s opinions “must be given substantial 2 weight.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 3 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must 4 give sufficient weight to the subjective aspects of a doctor’s 5 opinion. . . . 6 treating physician”) (citation omitted); see also Garrison v. Colvin, 7 759 F.3d 995, 1012 (9th Cir. 2014) (discussing deference owed to the 8 opinions of treating and examining physicians). 9 treating physician’s opinions are contradicted, as here, “if the ALJ This is especially true when the opinion is that of a Even where the 10 wishes to disregard the opinion[s] of the treating physician he . . . 11 must make findings setting forth specific, legitimate reasons for 12 doing so that are based on substantial evidence in the record.” 13 Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, 14 quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at 15 762 (“The ALJ may disregard the treating physician’s opinion, but only 16 by setting forth specific, legitimate reasons for doing so, and this 17 decision must itself be based on substantial evidence”) (citation and 18 quotations omitted). 19 20 The reasons the ALJ stated for rejecting Dr. Capen’s opinions do 21 not comport with these authorities. 22 Dr. Capen’s opinions were “not consistent with the record as a whole” 23 is an impermissibly vague and unspecific statement. 24 v. Colvin, 567 Fed. App’x 529, 530 (9th Cir. 2014) (ALJ’s statements 25 that treating physicians’ opinions “contrasted sharply with the other 26 evidence of record” and were “not well supported by the . . . other 27 objective findings in the case record” held insufficient); McAllister 28 v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (“broad and vague” 6 First, the ALJ’s statement that See, e.g., Kinzer 1 reasons for rejecting treating physician’s opinions do not suffice); 2 Embrey v. Bowen, 849 F.2d at 421 (“To say that the medical opinions 3 are not supported by sufficient objective findings or are contrary to 4 the preponderant conclusions mandated by the objective findings does 5 not achieve the level of specificity our prior cases have required. 6 . . .”); compare Wilson v. Colvin, 583 Fed. App’x 649, 651 (9th Cir. 7 2014) (upholding rejection of treating physician’s opinion where the 8 ALJ determined that the opinion was not corroborated by any other 9 medical opinion, was inconsistent with the rest of the record, and 10 relied heavily on the claimant’s own subjective statements which the 11 ALJ found incredible). 12 sources contradicted the opinions of Dr. Capen, such contradiction 13 triggers rather than satisfies the requirement of stating “specific, 14 legitimate reasons.” 15 685, 692 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 631-33 (9th 16 Cir. 2007). To the extent the opinions of other medical See, e.g., Valentine v. Commissioner, 574 F.3d 17 18 Second, the ALJ’s only other stated reason, i.e., that Dr. 19 Capen’s opinions assertedly were “made solely in the context of a 20 worker’s compensation claim” is not a legitimate reason. 21 the ALJ’s implication, the purpose for which a medical opinion is 22 obtained “does not provide a legitimate basis for rejecting it.” 23 Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1988) (mere fact that 24 opinions were provided for disability carrier at the request of 25 counsel is not a legitimate basis for evaluating the reliability of 26 the opinions); see Nash v. Colvin, 2016 WL 67677, at *7 (E.D. Cal. 27 Jan. 5, 2016) (“the ALJ may not disregard a physician’s medical 28 opinion simply because it was initially elicited in a state workers’ 7 Contrary to 1 compensation proceeding. . .”) (citations and quotations omitted); 2 Casillas v. Colvin, 2015 WL 6553414, at *3 (C.D. Cal. Oct. 29, 2015) 3 (same); Franco v. Astrue, 2012 WL 3638609, at *10 (C.D. Cal. Aug. 23, 4 2012) (same).1 5 6 Defendant now suggests other alleged justifications for rejecting 7 Dr. Capen’s opinions, but the ALJ did not include any of these other 8 alleged justifications among the ALJ’s stated reasons for rejecting 9 Dr. Capen’s opinions. See Defendant’s Motion at 7-10. The Court 10 “cannot affirm the decision of an agency on a ground that the agency 11 did not invoke in making its decision.” 12 840, 847 (9th Cir. 2001). Pinto v. Massanari, 249 F.3d 13 14 In light of the vocational expert’s testimony, the Court cannot 15 find harmless the ALJ’s failure to state sufficient reasons for 16 rejecting Dr. Capen’s opinions. 17 inconsequential to the ultimate nondisability determination.” 18 v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and 19 quotations omitted). 20 had to miss three or more days of work per month (the number of days 21 Dr. Capen opined Plaintiff would miss), there would be no work the 22 person could perform (A.R. 71). 23 /// 24 /// An error “is harmless where it is Molina The vocational expert testified that if a person 25 26 27 28 1 The Court also observes that Dr. Capen’s December 20, 2013 “Physical Residual Functional Capacity Form” appears to have been submitted in connection with Plaintiff’s social security claim, not, as the ALJ asserted, “solely in the context of a workers’ compensation claim.” 8 1 II. Remand for Further Administrative Proceedings is Appropriate. 2 3 Remand is appropriate because the circumstances of this case 4 suggest that further administrative review could remedy the ALJ’s 5 errors. 6 INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 7 administrative determination, the proper course is remand for 8 additional agency investigation or explanation, except in rare 9 circumstances); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2010); see also 10 (“Unless the district court concludes that further administrative 11 proceedings would serve no useful purpose, it may not remand with a 12 direction to provide benefits”); Treichler v. Commissioner, 775 F.3d 13 1090, 1101 n.5 (9th Cir. 2014) (remand for further administrative 14 proceedings is the proper remedy “in all but the rarest cases”); 15 Garrison v. Colvin, 759 F.3d at 1020 (court will credit-as-true 16 medical opinion evidence only where, inter alia, “the record has been 17 fully developed and further administrative proceedings would serve no 18 useful purpose”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), 19 cert. denied, 531 U.S. 1038 (2000) (remand for further proceedings 20 rather than for the immediate payment of benefits is appropriate where 21 there are “sufficient unanswered questions in the record”). 22 23 There remain significant unanswered questions in the present 24 record. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) 25 (remanding for further proceedings to allow the ALJ to “comment on” 26 the treating physician’s opinion). 27 present record whether the ALJ would be required to find Plaintiff 28 disabled for the entire claimed period of disability even if Dr. Moreover, it is not clear on the 9 1 Capen’s opinions were fully credited. 2 See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).2 3 4 CONCLUSION 5 6 For all of the foregoing reasons,3 Plaintiff’s and Defendant’s 7 motions for summary judgment are denied and this matter is remanded 8 for further administrative action consistent with this Opinion. 9 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 DATED: August 31, 2016. 13 14 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiff’s alleged onset date is January 18, 2011 (A.R. 24). Dr. Capen opined that Plaintiff’s limitations have existed since December 13, 2012 (A.R. 801). 3 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. The parties are advised, however, that this Court recently has remanded cases involving the same violation of Social Security Ruling 00-4p argued by Plaintiff herein. See, e.g., White v. Colvin, 2016 WL 4402798 (C.D. Cal. Aug. 17, 2016); Harrison v. Colvin, 2016 WL 1258447 (C.D. Cal. March 30, 2016). In those cases, as here, neither the ALJ nor the vocational expert recognized a potential conflict between the Dictionary of Occupational Titles’ reaching requirements and the vocational expert’s testimony that the claimant could perform jobs notwithstanding a limitation on overhead reaching. 10
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