Patrecia Pabon v. Commissioner of Social Security Administration, No. 8:2018cv01589 - Document 22 (C.D. Cal. 2019)
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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Patrecia Pabon v. Commissioner of Social Security Administration Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PATRECIA P. Plaintiff, 12 13 14 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) NO. SA CV 18-1589-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 September 6, 2018, seeking review 26 of the Commissioner’s denial of benefits. The parties filed a consent 27 to proceed before a United States Magistrate Judge on October 1, 2018. 28 Plaintiff filed a motion for summary judgment on January 14, 2019. Dockets.Justia.com 1 Defendant filed a motion for summary judgment (entitled a “Memorandum 2 in Support of Defendant’s Answer”) on April 3, 2019. 3 taken both motions under submission without oral argument. 4 7-15; “Order,” filed September 11, 2018. The Court has See L.R. 5 BACKGROUND 6 7 8 Plaintiff, a former certified nurse assistant and staffing 9 coordinator, alleges disability since June 26, 2013, based on, inter 10 alia, claimed mental impairments (Administrative Record (“A.R.”) 37, 11 54, 477, 484, 493, 514, 634, 655, 1109). 12 significant, progressively worsening mental impairments following a 13 June, 2013 motor vehicle accident in which she suffered a serious head 14 injury (id.). 15 anxiety, depression, memory problems and an inability to concentrate 16 (A.R. 477-500). 17 her licensed clinical social worker (A.R. 1621). 18 moderate left temporal dysfunction and mild right temporal dysfunction 19 (A.R. 1110). 20 neuropsychologist, observed: “[I]t is clear that [Plaintiff] suffers 21 from considerable emotional distress with a great deal of anxiety and 22 some modest transitory symptoms of depression” (A.R. 1260). 23 Pierce diagnosed “history of head injury,” “anxiety disorder,” and 24 “depressive disorder.” 25 psychotherapy and a psychiatric evaluation. 26 administered certain neuropsychological tests, the results of which 27 Dr. Pierce deemed invalid (A.R. 1259). 28 adequately” on some of Dr. Pierce’s tests, however, and those tests Plaintiff claims Plaintiff testified she has “word-finding issues,” Plaintiff earlier reported similar mental problems to An EEG revealed Dr. Christopher A. Pierce, an examining Id. Dr. Dr. Pierce recommended individual 2 Id. Dr. Pierce also Plaintiff “performed at least 1 reflected below average “executive functions,” a severe level of 2 anxiety symptoms, a moderate level of depressive symptoms and a 3 moderate level of feelings of hopelessness (A.R. 1259). 4 Fearey, a treating physician, included “memory loss” as among the 5 reasons Dr. Fearey believed that Plaintiff could not perform any 6 gainful employment (A.R. 1109). 7 agency physician opined Plaintiff has no medically determinable mental 8 impairment whatsoever (A.R. 537-38). Dr. Allen J. By contrast, a non-examining state 9 In evaluating Plaintiff’s alleged mental impairments, the ALJ 10 11 expressly declined to order a consultative examination of Plaintiff 12 (A.R. 40). 13 Plaintiff’s mental impairments medically determinable, but not severe 14 (A.R. 43). 15 capacity but an unlimited mental residual functional capacity (A.R. 16 45). 17 perform Plaintiff’s past relevant work as a staffing coordinator (A.R. 18 54). 19 21, 2017 (A.R. 55). Without further record development, the ALJ found The ALJ assessed a limited physical residual functional The ALJ determined that a person having this capacity could The ALJ’s decision finding Plaintiff not disabled is dated June 20 21 Plaintiff submitted additional medical evidence to the Appeals 22 Council while seeking review of the ALJ’s decision (A.R. 1-24). 23 Appeals Council made some of this additional evidence part of the 24 administrative record (id.). The 25 26 The additional evidence made part of the administrative record 27 included a “Neuropsychological Evaluation Report” based on testing 28 occurring in October-November of 2017 (A.R. 8-17). 3 In this report, 1 Dr. Julia Evans, a licensed clinical psychologist, found significant 2 cognitive deficits “likely related” to Plaintiff’s 2013 motor vehicle 3 accident (A.R. 13). 4 valid, revealed significant deficits in processing speed, language, 5 learning, memory and executive functioning (A.R. 12). 6 determined that Plaintiff met the criteria for major neurocognitive 7 disorder and recommended, among other things, that Plaintiff receive 8 “supervision” at least part of the time (A.R. 13-14). The testing results, which Dr. Evans deemed Dr. Evans 9 Defendant concedes that, in the present case, the Appeals Council 10 11 considered the “Neuropsychological Evaluation Report” (Defendant’s 12 Motion at 6). 13 3). 14 conclusion that the “Neuropsychological Evaluation Report” confirmed 15 the existence of significant mental impairments “likely related” to 16 Plaintiff’s 2013 motor vehicle accident. 17 rather that the report did not “relate to the period at issue” and did 18 not “affect the decision about whether [Plaintiff was] disabled 19 beginning on or before June 21, 2017” (A.R. 2). The Appeals Council nevertheless denied review (A.R. 1- The Appeals Council apparently disagreed with Dr. Evans’ The Appeals Council stated 20 21 STANDARD OF REVIEW 22 23 Under 42 U.S.C. section 405(g), this Court reviews the 24 Administration’s decision to determine if: (1) the Administration’s 25 findings are supported by substantial evidence; and (2) the 26 Administration used correct legal standards. 27 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 28 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 4 See Carmickle v. 1 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such 2 relevant evidence as a reasonable mind might accept as adequate to 3 support a conclusion.” 4 (1971) (citation and quotations omitted); see also Widmark v. 5 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 6 Where, as here, the Appeals Council “considers new evidence in 7 8 deciding whether to review a decision of the ALJ, that evidence 9 becomes part of the administrative record, which the district court 10 must consider when reviewing the Commissioner’s final decision for 11 substantial evidence.” 12 a practical matter, the final decision of the Commissioner includes 13 the Appeals Council’s denial of review, and the additional evidence 14 considered by that body is evidence upon which the findings and 15 decision complained of are based.” 16 omitted).1 17 “Neuropsychological Evaluation Report,” not under sentence six of 42 18 /// 19 /// 20 /// 21 /// 22 /// Brewes v. Commissioner, 682 F.3d at 1163. Id. (citations and quotations Thus, this Court reviews the newly submitted 23 24 1 25 26 27 28 “As And yet, the Ninth Circuit sometimes had stated that there exists “no jurisdiction to review the Appeals Council’s decision denying [the claimant’s] request for review.” See, e.g., Taylor v. Commissioner, 659 F.3d 1228, 1233 (9th Cir. 2011); see also Warner v. Astrue, 859 F. Supp. 2d 1107, 1115 n.10 (C.D. Cal. 2012) (remarking on the seeming irony of reviewing an ALJ’s decision in the light of evidence the ALJ never saw). 5 1 U.S.C. section 405(g), but under sentence four thereof.2 2 DISCUSSION 3 4 Social Security Ruling (“SSR”) 85-28 governs the evaluation of 5 6 whether an alleged impairment is “severe”: 7 8 An impairment or combination of impairments is found “not 9 severe” . . . when medical evidence establishes only a 10 slight abnormality or a combination of slight abnormalities 11 which would have no more than a minimal effect on an 12 individual’s ability to work . . . i.e., the person’s 13 impairment(s) has no more than a minimal effect on his or 14 her physical or mental ability(ies) to perform basic work 15 activities. 16 17 If such a finding [of non-severity] is not clearly 18 established by medical evidence, however, adjudication must 19 continue through the sequential evaluation process. 20 * * * 21 22 /// 23 /// 24 2 25 26 27 28 A reviewing court also may consider new evidence made a part of the administrative record where the Appeals Council should have considered such evidence but failed to do so. See Taylor v. Commissioner, 659 F.3d at 1232-33 (Appeals Council erroneously failed to consider newly submitted evidence; Ninth Circuit considered the new evidence in reversing administrative decision). 6 1 Great care should be exercised in applying the not severe 2 impairment concept. 3 determine clearly the effect of an impairment or combination 4 of impairments on the individual’s ability to do basic work 5 activities, the sequential evaluation process should not end 6 with the not severe evaluation step. 7 continued. If an adjudicator is unable to Rather, it should be 8 9 SSR 85-28 at *3-4;3 see also Smolen v. Chater, 80 F.3d 1273, 1290 10 (9th Cir. 1996) (the severity concept is “a de minimis screening 11 device to dispose of groundless claims”); accord Webb v. Barnhart, 433 12 F.3d 683, 686-87 (9th Cir. 2005). 13 14 In the present case, the Court’s review of the record concludes 15 that the medical evidence does not “clearly establish” the 16 non-severity of Plaintiff’s alleged mental impairments. 17 light of the “Neuropsychological Evaluation Report,” this conclusion 18 is nearly inescapable. 19 evidence regarding the severity of Plaintiff’s mental problems, no 20 such conflict “clearly establish[es]” the non-severity of those 21 problems during the relevant time frame. 22 Administration’s “non-severity” finding violated SSR 85-28 and the 23 Ninth Circuit authorities cited above. 24 Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (“it is a questionable 25 practice to chastise one with a mental impairment for the exercise of Especially in Although the record contains conflicting At a minimum, therefore, the See id.; see also Nguyen v. 26 27 28 3 Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 7 1 poor judgment in seeking rehabilitation”) (citation and quotations 2 omitted). 3 4 Respondent argues that the Administration’s non-severity finding 5 was harmless because the Administration was required to consider even 6 non-severe medically determinable impairments when assessing 7 Plaintiff’s residual functional capacity. 8 the error harmless under the circumstances of the present case. The Court is unable to find 9 10 First, the Administration further erred by failing fully and 11 fairly to develop the record concerning Plaintiff’s alleged mental 12 impairments. 13 the record to assure that the claimant’s interests are considered. 14 This duty exists even when the claimant is represented by counsel.” 15 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983); accord Garcia v. 16 Commissioner, 768 F.3d 925, 930 (9th Cir. 2014); see also Sims v. 17 Apfel, 530 U.S. 103, 110-11 (2000) (“Social Security proceedings are 18 inquisitorial rather than adversarial. 19 investigate the facts and develop the arguments both for and against 20 granting benefits. . . .”); Widmark v. Barnhart, 454 F.3d at 1068 21 (while it is a claimant’s duty to provide the evidence to be used in 22 making a residual functional capacity determination, “the ALJ should 23 not be a mere umpire during disability proceedings”) (citations and 24 internal quotations omitted). 25 the record is “especially important” “in cases of mental impairments.” 26 DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). 27 evidence in the record, including the reported invalidity of the 28 initial neuropsychological testing, the Administration should have “The ALJ has a special duty to fully and fairly develop It is the ALJ’s duty to The Administrations’s duty to develop 8 Given the 1 ordered a consultative examination of Plaintiff by a mental health 2 professional. See id. 3 4 Second, the newly submitted evidence suggests that fuller 5 development of the record might well have altered the residual 6 functional capacity assessment so as to include at least some mental 7 limitations. 8 (appropriate to remand for the ALJ to reconsider the decision in light 9 of new and material evidence submitted to the Appeals Council and made See Taylor v. Commissioner, 659 F.3d at 1233 10 a part of the record); see also Gardner v. Berryhill, 856 F.3d 652, 11 658 (9th Cir. 2017) (“we have affirmed district court denials of 12 remand notwithstanding the existence of new evidence only when there 13 would be substantial evidence supporting the ALJ’s denial of 14 disability benefits even if the new evidence were credited and 15 interpreted as argued by the claimant”); see generally McLeod v. 16 Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error not harmless where 17 “the reviewing court can determine from the circumstances of the case 18 that further administrative review is needed to determine whether 19 there was prejudice from the error”) (citations and quotations 20 omitted). 21 22 Remand is appropriate because the circumstances of this case 23 suggest that further development of the record and further 24 administrative review could remedy the Administration’s errors. 25 McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura, 537 U.S. 26 12, 16 (2002) (upon reversal of an administrative determination, the 27 proper course is remand for additional agency investigation or 28 explanation, except in rare circumstances); Dominguez v. Colvin, 808 9 1 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes 2 that further administrative proceedings would serve no useful purpose, 3 it may not remand with a direction to provide benefits”); Treichler v. 4 Commissioner, 775 F.3d 1090, 1101 n.5 (9th Cir. 2014) (remand for 5 further administrative proceedings is the proper remedy “in all but 6 the rarest cases”). 7 CONCLUSION 8 9 10 For all of the foregoing reasons,4 Plaintiff’s and Defendant’s 11 motions for summary judgment are denied and this matter is remanded 12 for further administrative action consistent with this Opinion. 13 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 DATED: April 10, 2019. 16 17 18 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 4 27 28 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. 10
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