(SS) Raymond v. Commissioner of Social Security, No. 2:2013cv02033 - Document 21 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 11/5/14 Recommending that Plaintiff's MOTION for SUMMAARY JUDGMENT 14 be granted; Defendant's Cross MOTION for SUMMARY JUDGMENT 17 be denied; and This matter be remanded for further proceedings re 1 Social Security Complaint. Thse Findings and Recommendations are submitted to U.S. District Judge John A. Mendez. Objections to these F&R due within 14 days. (Mena-Sanchez, L)
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(SS) Raymond v. Commissioner of Social Security Doc. 21 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAZZ MARRIE RAYMOND, 12 Plaintiff, 13 14 No. 2:13-CV-2033-JAM-CMK vs. FINDINGS AND RECOMMENDATIONS COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 / 17 18 Plaintiff, who is proceeding with retained counsel, brings this action under 19 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security. 20 Pending before the court are plaintiff’s motion for summary judgment (Doc. 14) and defendant’s 21 cross-motion for summary judgment (Doc. 17). 22 /// 23 /// 24 /// 25 /// 26 /// 1 Dockets.Justia.com 1 2 I. PROCEDURAL HISTORY Plaintiff applied for social security benefits on June 3, 2011. In the application, 3 plaintiff claims that disability began on December 14, 1992. Plaintiff’s claim was initially 4 denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which 5 was held on February 6, 2013, before Administrative Law Judge (“ALJ”) William C. Thompson, 6 Jr. In a March 15, 2013, decision, the ALJ concluded that plaintiff is not disabled based on the 7 following relevant findings: 8 1. The claimant has the following severe impairment(s): borderline intellectual functioning; 2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations; 3. The claimant has the following residual functional capacity: full range of work at all exertional levels but with the following non-exertional limitations: she can perform simple, routine, and repetitive tasks and have occasional interaction with supervisors, co-workers, and the public; 4. Considering the claimant’s age, education, work experience, residual functional capacity, and vocational expert testimony, there are jobs that exist in significant numbers in the national economy that the claimant can perform. 9 10 11 12 13 14 15 16 After the Appeals Council declined review on August 9, 2013, this appeal followed. 17 18 II. STANDARD OF REVIEW 19 The court reviews the Commissioner’s final decision to determine whether it is: 20 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 21 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 22 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 23 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to 24 support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 25 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 26 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 2 1 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s 2 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 3 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 4 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 5 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 6 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 7 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 8 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 9 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 10 Cir. 1988). 11 12 III. DISCUSSION 13 In her motion for summary judgment, plaintiff argues: (1) the ALJ failed to 14 address the opinions of the agency non-examining medical sources; (2) the ALJ failed to 15 articulate sufficient reasons for rejecting the opinions of examining sources Drs. Wakefield and 16 Defreitas; and (3) the ALJ erred in concluding that plaintiff’s impairments do not meet or 17 medically equal Listing 12.05C.1 18 A. 19 Evaluation of the Medical Opinions The weight given to medical opinions depends in part on whether they are 20 proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d 21 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 22 professional, who has a greater opportunity to know and observe the patient as an individual, 23 than the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 24 1 25 26 While plaintiff also states in her brief that she “strongly objects” to any inference defendant may suggest that she concedes to the ALJ’s adverse credibility finding, she does not present any specific arguments as to credibility. The ALJ’s adverse credibility finding, therefore, is not before the court. 3 1 (9th Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given 2 to the opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 3 (9th Cir. 1990). 4 In addition to considering its source, to evaluate whether the Commissioner 5 properly rejected a medical opinion the court considers whether: (1) contradictory opinions are 6 in the record; and (2) clinical findings support the opinions. The Commissioner may reject an 7 uncontradicted opinion of a treating or examining medical professional only for “clear and 8 convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831. 9 While a treating professional’s opinion generally is accorded superior weight, if it is contradicted 10 by an examining professional’s opinion which is supported by different independent clinical 11 findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035, 12 1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be 13 rejected only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 14 81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of 15 the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a 16 finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and 17 legitimate reasons, the Commissioner must defer to the opinion of a treating or examining 18 professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional, 19 without other evidence, is insufficient to reject the opinion of a treating or examining 20 professional. See id. at 831. In any event, the Commissioner need not give weight to any 21 conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111, 22 1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion); 23 see also Magallanes, 881 F.2d at 751. 24 /// 25 /// 26 /// 4 1 1. Non-Examining Sources 2 Plaintiff argues that the ALJ failed to give any consideration to the opinions of 3 two agency non-examining medical sources. According to plaintiff: “The ALJ never analyzed or 4 discussed why he was not crediting the state agency opinions that Ms. Raymond’s back condition 5 limited her to medium work.” Plaintiff cites first to an August 10, 2011, case analysis by agency 6 reviewing doctor Sadda V. Reddy, M.D. Dr. Reddy concluded: “In summary, CE MSO of a 7 medium RFC with frequent postural limitations is appropriate considering chronic low back pain 8 with history of radicular symptoms.” Next, plaintiff cites a June 15, 2012, case review by Roger 9 Fast, M.D., who concluded: “I agree with and affirm the medium RFC.” Defendant argues: 10 “Here, to the extent that the ALJ failed to discuss the opinions of Dr. Reddy and Dr. Fast, this 11 error was harmless.” 12 The Ninth Circuit has applied harmless error analysis in social security cases in a 13 number of contexts. For example, in Stout v. Commissioner of Social Security, 454 F.3d 1050 14 (9th Cir. 2006), the court stated that the ALJ’s failure to consider uncontradicted lay witness 15 testimony could only be considered harmless “. . . if no reasonable ALJ, when fully crediting the 16 testimony, could have reached a different disability determination.” Id. at 1056; see also Robbins 17 v. Social Security Administration, 466 F.3d 880, 885 (9th Cir. 2006) (citing Stout, 454 F.3d at 18 1056). Similarly, in Batson v. Commissioner of Social Security, 359 F.3d 1190 (9th Cir. 2004), 19 the court applied harmless error analysis to the ALJ’s failure to properly credit the claimant’s 20 testimony. Specifically, the court held: 21 22 23 24 However, in light of all the other reasons given by the ALJ for Batson’s lack of credibility and his residual functional capacity, and in light of the objective medical evidence on which the ALJ relied there was substantial evidence supporting the ALJ’s decision. Any error the ALJ may have committed in assuming that Batson was sitting while watching television, to the extent that this bore on an assessment of ability to work, was in our view harmless and does not negate the validity of the ALJ’s ultimate conclusion that Batson’s testimony was not credible. 25 Id. at 1197 (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990)). 26 5 1 In Curry, the Ninth Circuit applied the harmless error rule to the ALJ’s error with respect to the 2 claimant’s age and education. The Ninth Circuit also considered harmless error in the context of 3 the ALJ’s failure to provide legally sufficient reasons supported by the record for rejecting a 4 medical opinion. See Widmark v. Barnhart, 454 F.3d 1063, 1069 n.4 (9th Cir. 2006). 5 The harmless error standard was applied in Carmickle v. Commissioner, 533 F.3d 6 1155 (9th Cir. 2008), to the ALJ’s analysis of a claimant’s credibility. Citing Batson, the court 7 stated: “Because we conclude that . . . the ALJ’s reasons supporting his adverse credibility 8 finding are invalid, we must determine whether the ALJ’s reliance on such reasons was harmless 9 error.” See id. at 1162. The court articulated the difference between harmless error standards set 10 11 12 13 14 15 16 17 18 19 20 forth in Stout and Batson as follows: . . . [T]he relevant inquiry [under the Batson standard] is not whether the ALJ would have made a different decision absent any error. . . it is whether the ALJ’s decision remains legally valid, despite such error. In Batson, we concluded that the ALJ erred in relying on one of several reasons in support of an adverse credibility determination, but that such error did not affect the ALJ’s decision, and therefore was harmless, because the ALJ’s remaining reasons and ultimate credibility determination were adequately supported by substantial evidence in the record. We never considered what the ALJ would do if directed to reassess credibility on remand – we focused on whether the error impacted the validity of the ALJ’s decision. Likewise, in Stout, after surveying our precedent applying harmless error on social security cases, we concluded that “in each case, the ALJ’s error . . . was inconsequential to the ultimate nondisability determination.” Our specific holding in Stout does require the court to consider whether the ALJ would have made a different decision, but significantly, in that case the ALJ failed to provide any reasons for rejecting the evidence at issue. There was simply nothing in the record for the court to review to determine whether the ALJ’s decision was adequately supported. 21 Carmickle, 533 F.3d at 1162-63 (emphasis in original; citations omitted). 22 23 Thus, where the ALJ’s errs in not providing any reasons supporting a particular determination 24 (i.e., by failing to consider lay witness testimony), the Stout standard applies and the error is 25 harmless if no reasonable ALJ could have reached a different conclusion had the error not 26 occurred. Otherwise, where the ALJ provides analysis but some part of that analysis is flawed 6 1 (i.e., some but not all of the reasons given for rejecting a claimant’s credibility are either legally 2 insufficient or unsupported by the record), the Batson standard applies and any error is harmless 3 if it is inconsequential to the ultimate decision because the ALJ’s disability determination 4 nonetheless remains valid. 5 At the outset, the court agrees with plaintiff that the ALJ erred in concluding that 6 plaintiff could perform work at all exertional levels by failing to discuss, or even mention, the 7 opinions of Drs. Reddy and Fast which limit plaintiff to medium work due to back problems. 8 Considering next defendant’s argument that the error is harmless, the court applies the Stout 9 standard because, in essence, the ALJ provided no reasons for rejecting these doctors’ limitation 10 to medium work. Under this standard, the question is whether any reasonable ALJ, having 11 considered the opinions of Drs. Reddy and Fast, could have limited plaintiff to medium work. If 12 so, then the error cannot be considered harmless and must be corrected by the agency. 13 Defendant argues that the ALJ need not “mention every doctor by name” because 14 it is only necessary for the ALJ to consider probative evidence. The court rejects defendant’s 15 suggestion that the opinions of Drs. Reddy and Fast, who examined the record at the request of 16 the agency and concluded that plaintiff’s back problems limit her to medium work, are not 17 probative on the issue of plaintiff’s residual functional capacity. To the contrary, their opinions 18 directly address the question of plaintiff’s functional capacity. 19 20 21 22 23 24 25 Next, defendant argues that the error is harmless because no ALJ considering the opinions of Drs. Reddy and Fast would have given them any weight. According to defendant: Here, the opinions of Dr. Reddy and Dr. Fast are internally inconsistent, i.e., they are not even supported by their own findings. Plaintiff’s argument is that Dr. Reddy’s opinion “limiting” Plaintiff to medium work due to a back impairment, however, the physical findings were benign; straight-leg raising was negative, the MRI was negative, gait was normal, flexion was normal, motor and sensory were normal, Plaintiff was engaging in normal activities of daily living (Tr. 32). The only thing supporting Dr. Reddy’s opinion were findings of mild back spasm and tenderness (Tr. 32). The Commissioner submits that these findings did not support imposition of any limitations. 26 7 1 While defendant’s summary of Dr. Reddy’s August 10, 2011, case analysis is 2 accurate, defendant fails to note that Dr. Reddy also cited “history of radicular symptoms” in 3 support of the doctor’s conclusion that plaintiff is limited to medium work. Additionally, 4 defendant’s argument only addresses Dr. Reddy’s opinion. Defendant fails to offer any analysis 5 as to Dr. Fast’s June 15, 2012, case review, which is based on a review of the entire file. Given 6 the arguments offered by defendant, the court declines to conclude that the opinions of Drs. 7 Reddy and Fast could not support imposition of a medium work restriction. 8 9 In any event, the analysis defendant offers and suggests this court adopt is exactly the kind of analysis that is reserved for the agency in the first instance and that would have 10 happened in this case had the error plaintiff complains of not occurred. The court finds that this 11 matter should be remanded to the agency to address the opinions of Drs. Reddy and Fast limiting 12 plaintiff to medium work. 13 2. 14 Plaintiff argues that the ALJ failed to articulate sufficient reasons for rejecting the 15 Examining Sources opinions of examining sources, Drs. Defreitas and Wakefield. 16 As to Dr. Defreitas, the ALJ stated: 17 On July 14, 2011, Donna Defreitas, M.D., performed a consultative internal medicine evaluation of the claimant at the behest of the State agency. The latter complained of back pain for 2 or 3 months, but admitted she could perform personal care, do housework, vacuum, mop, wash dishes, interact with friends, and dance (Ex. 12F1). On examination, she had normal gait and range of motion in the back, negative straight leg raising, tenderness and mild muscle spasm in the lumbar spine, signs of scoliosis in the thoracic spine (Ex. 12F3), and full muscle strength and tone. Dr. Defreitas diagnosed mild to moderate scoliosis and diminished reflexes in the right pattelar, suggestive of nerve compromise. Dr. Defreitas opined the claimant could perform medium work except she could frequently crouch and stoop (Ex. 12F4). I give Dr. Defreitas’ opinion reduced weight. X-rays and an MRI of the back showed no abnormalities, and the claimant reported activities that are not consistent with the alleged severity of her pain. Further, the claimant did not consistently complain of pain and did not complete her physical therapy, suggesting her pain was not as great as she contends. 18 19 20 21 22 23 24 25 26 /// 8 1 As to Dr. Wakefield, the ALJ stated: 2 On July 21, 2011, James Wakefield, Ph.D., performed a consultative psychological evaluation of the claimant at the behest of the State agency. On examination, the claimant endorsed visual hallucinations of her grandmother, displayed deficient intelligence, judgment, and concentration, and exhibited borderline and/or inconsistent memory, ability to perform calculations, and fund of information. However, she did not appear to respond to internal stimuli, had normal appearance and thought content, was cooperative and communicative, showed cheerful affect, spoke clearly with minimally adequate verbal skills, was oriented, and endorsed “OK” mood (Ex. 13F2). She tested with a full scale IQ of 68, in the deficient range, deficient delayed memory (Ex. 13F3), and poor performance on the Trails test. However, she tested with much better memory and perceptual motor skills on the final test. Dr. Wakefield diagnosed mood disorder NOS, borderline intellectual functioning versus mild mental retardation, and a Global Assessment of Functioning score of 65, indicating mild symptoms or difficulties. He opined that the claimant could not handle finances, could perform simple, repetitive tasks (Ex. 13F4), had limited and/or deficient ability to reason, concentrate, and make decisions in her best interest, and had immature social functioning. Because Dr. Wakefield does not specify what functional limitations result from her limited or deficient abilities, I cannot assess what weight to give his opinion, though I agree the claimant’s borderline intellectual functioning limits her to simple, routine, and repetitive tasks as demonstrated by Dr. Wakefield’s testing and her school records. 3 4 5 6 7 8 9 10 11 12 13 14 15 The court finds no error with the ALJ’s analysis. Regarding Dr. Defreitas, the 16 ALJ properly discounted the doctor’s opinion because it was supported at best by minimal 17 clinical findings. Specifically, the ALJ noted the negative x-ray and MRI findings. Regarding 18 Dr. Wakefield, while the doctor provided no specific opinions as to occupational imitations for 19 the ALJ to either adopt or reject, the ALJ accepted the limitations identified by Dr. Wakefield by 20 including appropriate non-exertional limitations in his residual functional capacity finding. In 21 particular, the ALJ limited plaintiff to work involving simple, routine, repetitive tasks with only 22 occasional interaction with supervisors, co-workers, or the public. 23 /// 24 /// 25 /// 26 /// 9 1 B. 2 Applicability of the Listings The Social Security Regulations “Listing of Impairments” is comprised of 3 impairments to fifteen categories of body systems that are severe enough to preclude a person 4 from performing gainful activity. Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990); 20 5 C.F.R. § 404.1520(d). Conditions described in the listings are considered so severe that they are 6 irrebuttably presumed disabling. 20 C.F.R. § 404.1520(d). In meeting or equaling a listing, all 7 the requirements of that listing must be met. Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir. 8 1985). 9 Plaintiff argues that “the ALJ went out of his way to find that Ms. Raymond did 10 not suffer from more than borderline intellectual functioning because he knew that so finding 11 would require him to find her disabled under Listing 12.05C.” More specifically, plaintiff 12 argues: “The ALJ stated that, although Ms Raymond tested with an IQ of 68 (which the ALJ 13 never challenged so seemed to have accepted as a valid IQ score), Ms. Raymond did not have 14 another impairment causing more than minimal functional limitations.” According to plaintiff, 15 her back impairment, as well as her difficulties handling stress and changes in routine, constitute 16 “another impairment” causing more than minimal functional limitations. 17 Because, as discussed above, the court finds that remand is necessary to allow the 18 agency to consider in the first instance the opinions of Drs. Reddy and Fast that plaintiff is 19 limited to medium work due to back problems, it is possible that plaintiff does in fact have 20 “another impairment” such that re-evaluation of the application of Listing 12.05C is also 21 warranted. 22 /// 23 /// 24 /// 25 /// 26 /// 10 1 IV. CONCLUSION 2 Based on the foregoing, the court concludes that this matter should be remanded 3 under sentence four of 42 U.S.C. § 405(g) for further development of the record and/or further 4 findings addressing the deficiencies noted above. Accordingly, the undersigned recommends 5 that: 6 1. Plaintiff’s motion for summary judgment (Doc. 14) be granted; 7 2. Defendant’s cross motion for summary judgment (Doc. 17) be denied; and 8 3. This matter be remanded for further proceedings. 9 These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court. Responses to objections shall be filed within 14 days after service of 13 objections. Failure to file objections within the specified time may waive the right to appeal. 14 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 17 18 DATED: November 5, 2014 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 11
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