Oscar H. Barcenas v. Carolyn W. Colvin, No. 8:2016cv01311 - Document 35 (C.D. Cal. 2017)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings. (mz)
Download PDF
Oscar H. Barcenas v. Carolyn W. Colvin Doc. 35 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-SOUTHERN DIVISION 11 12 13 14 15 16 17 18 OSCAR H. BARCENAS, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL,1 ) Acting Commissioner of the ) Social Security Administration,) ) Defendant. ) ) Case No. SACV 16-01311-AS MEMORANDUM OPINION AND ORDER OF REMAND 19 20 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED 21 that this matter be remanded for further administrative action 22 consistent with this Opinion. 23 PROCEEDINGS 24 25 26 27 28 On July 14, 2016, Plaintiff filed a Complaint seeking review of the denial of his applications for Disability Insurance Benefits and 1 Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration and is substituted in for Acting Commissioner Caroyln W. Colvin in this case. See 42 U.S.C. § 205(g). Dockets.Justia.com 1 Supplemental Security Income. (Docket Entry No. 1). The parties have 2 consented to proceed before the undersigned United States Magistrate 3 Judge. (Docket Entry Nos. 15-16). On January 10, 2017, Defendant filed 4 an Answer along with the Administrative Record (“AR”). 5 Nos. 23-24). (Docket Entry The parties filed a Joint Stipulation (“Joint Stip.”) on 6 August 29, 2017, setting forth their respective positions regarding 7 Plaintiff’s claims. (Docket Entry No. 34). 8 9 The Court has taken this matter under submission without oral 10 argument. See C.D. Cal. L.R. 7-15; “Order Re: Procedures in Social 11 Security Appeal,” filed August 3, 2016 (Docket Entry No. 13). 12 13 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 14 15 On September 6 and 12, 2012, Plaintiff,formerly employed as a 16 graphics printer (see AR 56, 147-55), filed applications for Disability 17 Insurance Benefits and Supplemental Security Income, both alleging a 18 disability since November 10, 2009. (See AR 119-26). On July 15, 2013, 19 the Administrative Law Judge (“ALJ”), Frederick C. Michaud, heard 20 testimony from Plaintiff (represented by counsel) and vocational expert 21 Katie Macy-Powers. (See AR 53-66). On December 19, 2013, the ALJ 22 issued a decision denying Plaintiff’s applications. (See AR 15-28). 23 After determining that Plaintiff had severe combination of impairments 24 –- “left knee arthralgia, lumbar and cervical spondylosis, and obesity” 25 (AR 17-19)2 –- but did not have an impairment or combination of 26 impairments that met or medically equaled the severity of one of the 27 Listed Impairments (AR 20), the ALJ found that Plaintiff had the 28 2 The ALJ determined that Plaintiff’s mental impairment of dysthymia is nonsevere. (See AR 17-19). 2 1 residual functional capacity (“RFC”)3 to perform a full range of medium 2 work.4 (AR 20-28). Finding that Plaintiff was capable of performing 3 past relevant work as a printer as generally performed, the ALJ found 4 that Plaintiff was not disabled within the meaning of the Social 5 Security Act. (AR 28). 6 7 Plaintiff requested that the Appeals Council review the ALJ’s 8 Decision. (See AR 42-43). The request was denied on May 20, 2016. (See 9 AR 1-5). The ALJ’s Decision then became the final decision of the 10 Commissioner, allowing this Court to review the decision. See 42 U.S.C. 11 §§ 405(g), 1383(c). 12 13 PLAINTIFF’S CONTENTIONS 14 15 Plaintiff alleges that the ALJ erred in failing to (1) properly 16 consider the opinion of Plaintiff’s examining physician, Dr. Berman, and 17 (2) properly determine that Plaintiff could perform the past relevant 18 work. (See Joint Stip. at 4-8, 11-15, 17-19). 19 20 DISCUSSION 21 22 After consideration of the record as a whole, the Court finds that 23 Plaintiff’s first claim of error warrants a remand for further 24 25 3 A Residual Functional Capacity is what a claimant can still do See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 26 despite existing exertional and nonexertional limitations. 27 28 4 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. §§ 404.1567(c), 416.967(c). 3 1 consideration. Since the Court is remanding the matter based on 2 Plaintiff’s first claim of error, the Court will not address Plaintiff’s 3 second claim of error. 4 5 A. 6 7 The ALJ Did Not Properly Reject the Opinion Examining Physician, Jeffrey A. Berman, M.D. of Plaintiff’s Plaintiff asserts that the ALJ failed to provide any reasons, or 8 even specific and legitimate reasons, for rejecting the opinion of 9 Plaintiff’s examining physician, Dr. Berman. (See Joint Stip. at 4-8, 10 10-13). Defendant asserts that the ALJ provided sufficient reasons for 11 rejecting the opinion of Dr. Berman. (See Joint Stip. at 8-11). 12 13 An ALJ must take into account all medical opinions of record. 20 14 C.F.R. §§ 404.1527(b), 416.927(b). “Generally, a treating physician’s 15 opinion carries more weight than an examining physician’s, and an 16 examining physician’s opinion carries more weight than a reviewing 17 physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 18 2001); see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 19 20 If a treating or examining doctor’s opinion is not contradicted by 21 another doctor, the ALJ can reject the opinion only for “clear and 22 convincing reasons.” Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 23 1155, 1164 (9th Cir. 2008); Lester v. Chater, 81 F.3d at 830-31. If the 24 treating or examining doctor’s opinion is contradicted by another 25 doctor, the ALJ must provide “specific and legitimate reasons” for 26 rejecting the opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 27 2007); Lester v. Chater, supra. 28 4 1 On July 20, 2010, Jeffrey A. Berman, M.D. (an orthopaedic surgeon), 2 who initially evaluated Plaintiff in November 2006, prepared a report 3 following an agreed medical reevaluation of Plaintiff. (See AR 262-77).5 4 Plaintiff complained of neck pain, left shoulder pain, mid-back pain, 5 lower back pain, lower extremity pain, and sleep issues. (AR 264-65). 6 Plaintiff stated he had difficulty with daily activities such as 7 bathing, dressing, showering and self-hygiene activities. (AR 265). 8 Based on the results of the physical examination (see AR 265-71) and 9 based on the review of Plaintiff’s medical records (see AR 271-73), Dr. 10 Berman opined inter alia that Plaintiff’s status was permanent and 11 stationary with maximum medical improvement, Plaintiff should avoid 12 heavy lifting and repetitive motion of the neck (because of his cervical 13 spine), Plaintiff should avoid heavy lifting and repetitive bending and 14 stooping (because of his lumbar spine), Plaintiff should avoid heavy 15 work activities and overhead activities (because of his left shoulder), 16 Plaintiff had combined whole person impairments totaling 43 percent, and 17 that Plaintiff cannot return to his previous job. (AR 273-77). 18 19 In the Decision, the ALJ does not mention Dr. Berman by name, nor 20 does he mention or discuss Dr. Berman’s July 20, 2010 report. Although, 21 as Defendant points out (see Joint Stip. at 9), the ALJ did note 22 “[w]orker’s compensation record from 2010-January 2011 reveal that the 23 claimant reported neck pain, back pain, shoulder pain, and knee pain” 24 (AR 21), it is clear that the ALJ did not consider or address Dr. 25 Berman’s opinion in the July 20, 2010 report: First, the ALJ’s 26 discussion of Plaintiff’s 2010-2011 worker’s compensation records did 27 28 5 It is not clear whether the entire July 20, 2010 report is contained in the administrative record. 5 1 not mention the complaints that Plaintiff made to Dr. Berman about mid2 back pain and sleep issues). Second, the ALJ cited only to Exhibit 10 3 (see AR 21) in his discussion of Plaintiff’s 2010-2011 worker’s 4 compensation records, and did not cite to the exhibit where Dr. Berman’s 5 July 20, 2010 report is located (see AR 262-77 [Exhibit 9F/16-31]). 6 Finally, the ALJ discussion of Plaintiff’s 2007-2008 worker’s 7 compensation records also failed to cite to Dr. Berman’s July 20, 2010 8 report. (See AR 21). Since the ALJ did not acknowledge or address Dr. 9 Berman’s July 20, 2010 report, the ALJ did not provide any reasons for 10 rejecting Dr. Berman’s opinion in that report.6 Simply put, the ALJ did 11 not provide any reasons, much less “specific and legitimate” reasons or 12 “clear and convincing” reasons, for rejecting Dr. Berman’s opinion. 13 14 To the extent that the ALJ may have rejected Dr. Berman’s opinion 15 because it included Workers’ Compensation terms, the ALJ erred in 16 failing to translate Dr. Berman’s opinion about Plaintiff’s limitations 17 in the Workers’ Compensation context into the Social Security context. 18 See Booth v. Barnhart, 181 F.Supp.2d 1099, 1105-06 (C.D. Cal. 2002) 19 (“[T]he ALJ may not disregard a physician’s medical opinion simply . . 20 . because it is couched in the terminology used in such proceedings.”; 21 “The ALJ must ‘translate’ terms of art contained in such medical 22 opinions into the corresponding Social Security terminology in order to 23 accurately assess the implications of those opinions for the Social 24 Security disability determination.”); Vasquez-Pamplona v. Colvin, 2015 25 26 6 The Court will not consider reasons for rejecting Dr. Berman’s 27 opinion (see Joint Stip. at 9-11) that were not given by the ALJ in the 28 Decision. See Trevizo v. Berryhill, 862 F.3d 987, 997 (9th Cir. 2017); Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). 6 1 WL 5796994, *4 (C.D. Cal. Sept. 30, 2015)(“A Social Security decision 2 must, however, reflect that the ALJ properly considered the pertinent 3 distinctions between the state and federal statutory schemes, and that 4 the ALJ accurately assessed the implications medical findings drawn from 5 a worker’s compensation opinion may have for purposes of a Social 6 Security disability determination.”)(citing Booth v. Barnhart, 181 7 F.Supp.2d at 1106); see also Lester v. Chater, 81 F.3d at 830 (“[T]he 8 purpose for which medical reports are obtained does not provide a 9 legitimate basis for rejecting them.”). 10 11 B. Remand Is Warranted 12 13 The decision whether to remand for further proceedings or order an 14 immediate award of benefits is within the district court’s discretion. 15 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 16 useful purpose would be served by further administrative proceedings, or 17 where the record has been fully developed, it is appropriate to exercise 18 this discretion to direct an immediate award of benefits. Id. at 1179 19 (“[T]he decision of whether to remand for further proceedings turns upon 20 the likely utility of such proceedings.”). However, where, as here, the 21 circumstances of the case suggest that further administrative review 22 could remedy the Commissioner’s errors, remand is appropriate. McLeod 23 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, supra, 24 211 F.3d at 1179-81. 25 26 Since the ALJ failed to properly assess the opinion of Dr. Berman, 27 remand is appropriate. Because outstanding issues must be resolved 28 before a determination of disability can be made, and “when the record 7 1 as a whole creates serious doubt as to whether the [Plaintiff] is, in 2 fact, disabled within the meaning of the Social Security Act,” further 3 administrative proceedings would serve a useful purpose and remedy 4 defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 5 2014)(citations omitted).7 6 7 ORDER 8 9 For the foregoing reasons, the decision of the Commissioner is 10 reversed, and the matter is remanded for further proceedings pursuant to 11 Sentence 4 of 42 U.S.C. § 405(g). 12 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 DATED: August 31, 2017 16 17 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 7 any Plaintiff 24 except to The Court has not reached with other issue raised by immediate determine that reversal a directive for the would not be 25 payment of benefits record as a wholeappropriate at this time. “[E]valuation of the creates serious doubt that Plaintiff is in 759 26 (9th Cir. 2014). fact disabled.” Garrison v. Colvin,rule F.3d 995, 1021 Accordingly, the Court declines to on Plaintiff’s claim regarding the ALJ’s error in failing to properly determine that 27 Plaintiff could perform his past relevant work (see Joint Stip. at 11Because this matter is being remanded for further 28 15, 17-19). consideration, this issue should also be considered on remand. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9