Martinez v. Colvin, No. 3:2014cv03043 - Document 26 (S.D. Cal. 2016)
Court Description: ORDER Granting Plaintiff's 19 Motion for Summary Judgment, Denying Defendant's 23 Cross-Motion for Summary Judgment, Vacating ALJ's Decision, and Remanding for Further Proceedings. Signed by Judge Barry Ted Moskowitz on 3/30/2016.(Notifying agency via U.S. Mail Service)(rlu)
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1 2 UNITED STATES DISTRICT COURT 3 SOUTHERN DISTRICT OF CALIFORNIA 4 EFREN RICARDO MARTINEZ, 5 6 7 Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 8 Defendant. 9 Case No.: 14cv3043 BTM(WVG) ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT, VACATING ALJ’S DECISION, AND REMANDING FOR FURTHER PROCEEDINGS 10 In this action, Plaintiff Efren Ricardo Martinez seeks review of the 11 Commissioner of Social Security’s denial of his application for a period of disability 12 and disability insurance benefits. Plaintiff and Defendant have filed cross-motions 13 for summary judgment. For the reasons discussed below, the Court GRANTS 14 Plaintiff’s motion for summary judgment, DENIES Defendant’s motion for summary 15 judgment, VACATES the Commissioner’s decision, and REMANDS for further 16 proceedings. 17 18 I. PROCEDURAL BACKGROUND 19 On February 25, 2011, Plaintiff filed a Title II application for a period of 20 disability and disability insurance benefits, alleging disability beginning December 1 14cv3043 BTM(WVG) 1 31, 2010. Plaintiff’s claim was denied initially on November 7, 2011, and upon 2 reconsideration on June 25, 2012. 3 On May 8, 2013, Plaintiff’s claim was heard by Administrative Law Judge 4 Gail Reich (the “ALJ”). On July 18, 2013, the ALJ issued a decision denying 5 benefits. Plaintiff filed a request for review with the Appeals Council, which was 6 denied on October 28, 2014. The ALJ’s decision then became the final decision 7 of the Commissioner of Social Security. Plaintiff seeks judicial review of the 8 Commissioner’s decision pursuant to 42 U.S.C. § 405(g). 9 II. ALJ’S FINDINGS AND CONCLUSIONS 10 11 12 13 The ALJ conducted the five-step sequential analysis set forth in 20 C.F.R. § 404.1520.1 At the outset, the ALJ found that Plaintiff met the insured status requirements 14 15 1 16 17 18 19 20 Under the Social Security Regulations, the determination of whether a claimant is disabled within the meaning of the Social Security Act is a five step process. The five steps are as follows: (1) Is the claimant presently working in any substantially gainful activity? If so, then the claimant is not disabled. If not, then the evaluation proceeds to step two. (2) Is the claimant’s impairment severe? If not, then the claimant is not disabled. If so, then the evaluation proceeds to step three. (3) Does the impairment “meet or equal” one of a list of specific impairments set forth in Appendix 1 to Subpart P of Part 404? If so, then the claimant is disabled. If not, then the evaluation proceeds to step four. (4) Is the claimant able to do any work that she has done in the past? If so, then the claimant is not disabled. If not, then the evaluation proceeds to step five. (5) Is the claimant able to do any other work? If not, then the claimant is disabled. If, on the other hand, the Commissioner can establish that there are a significant number of jobs in the national economy that the claimant can do, the claimant is not disabled. 20 C.F.R. § 404.1520. See also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). 2 14cv3043 BTM(WVG) 1 2 3 4 5 of the Social Security Act through December 31, 2014. (AR 12.) The ALJ then found that Plaintiff had not engaged in substantial gainful activity since December 31, 2010, the alleged onset date. Next, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine status post fusion surgery. 6 The ALJ determined that Plaintiff did not have an impairment or combination 7 of impairments that meets or medically equals the severity of one of the listed 8 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ explained: 9 10 11 12 The claimant does not meet or equal Medical Listing 1.04 because he does not have a combination of evidence involving nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with muscle weakness), accompanied by sensory or reflex loss and positive straight-leg raising test; or spinal arachnoiditis or lumbar spinal stenosis resulting in pseudoclaudication, both established by appropriate medical acceptable imaging. 13 (AR 22-23.) 14 At step five, the ALJ found that Plaintiff has the residual functional capacity 15 to perform light work as defined in 20 C.F.R. 404.1567(b), except with the ability 16 to adjust positions every 30 minutes. The ALJ found not credible Plaintiff’s 17 testimony that he cannot work full-time due to back problems. 18 Based on the testimony of the vocational expert, the ALJ found that Plaintiff 19 is able to perform past relevant work as a real estate agent. The ALJ also 20 determined that Plaintiff is able to perform other jobs existing in the national 3 14cv3043 BTM(WVG) 1 economy such as box printer (DOT No. 652.682-010), office assistant (DOT No. 2 209.562-010), appointment clerk (DOT No. 237.367-010), front desk receptionist 3 (DOT No. 237.367-038), and receptionist host reader (DOT No. 667-010). 4 5 Therefore, the ALJ concluded that Plaintiff is not disabled within the meaning of the Social Security Act. 6 7 III. STANDARD 8 The Commissioner’s denial of benefits may be set aside if it is based on legal 9 error or is not supported by substantial evidence. Jamerson v. Chater, 112 F.3d 10 1064, 1066 (9th Cir. 1997). Substantial evidence is more than a scintilla but less 11 than a preponderance. Id. Substantial evidence is “relevant evidence which, 12 considering the record as a whole, a reasonable person might accept as adequate 13 to support a conclusion.” Flaten v. Secretary of Health & Human Servs., 44 F.3d 14 1453, 1457 (9th Cir. 1995). A denial of benefits must be upheld if the evidence 15 could reasonably support either affirming or reversing the ALJ’s decision. Robbins 16 v. Social Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 17 18 IV. DISCUSSION 19 Plaintiff argues that the Commissioner’s decision should be reversed and 20 that this matter should be remanded for further proceedings because: (1) the ALJ 4 14cv3043 BTM(WVG) 1 failed to make findings regarding Plaintiff’s mental impairments and asthma at step 2 two of the sequential analysis; (2) the ALJ’s credibility determination was legally 3 erroneous and unsupported by substantial evidence; and (3) the ALJ’s step four 4 and step five determinations were unsupported by substantial evidence because 5 the ALJ did not include in the hypothetical posed to the vocational expert 6 restrictions resulting from Plaintiff’s mental impairments and asthma. As discussed 7 below, the Court finds that remand is appropriate so that the ALJ can further 8 develop the record regarding whether Plaintiff’s mental impairments and asthma 9 are “severe” and whether they result in any functional limitations.2 10 11 A. Evidence of Mental Impairment 12 On July 1, 2010, Plaintiff followed up with his primary care physician, David 13 Michael Kaiden, M.D., after having been admitted to Palomar Medical Center for 14 left-sided numbness and discomfort. (AR 55.) Dr. Kaiden noted that Plaintiff was 15 having trouble sleeping, having panic attacks, mood swings, emotional labilitiy, 16 17 18 19 20 Plaintiff contends that the ALJ’s credibility determination was erroneous but does not ask the Court to apply the “credit-as-true” rule. See Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014). Instead, Plaintiff’s challenge to the ALJ’s credibility determination is another ground for remand for further proceedings. Because the Court reverses the ALJ’s decision and remands based on the ALJ’s failure to give proper consideration to Plaintiff’s mental impairment and dyspnea/asthma, there will be a new hearing, and the Court finds it unnecessary to reach the credibility issue. 2 5 14cv3043 BTM(WVG) 1 trouble focusing, and mild anhendonia. (AR 554.) Upon examination, Dr. Kaiden 2 observed: “His mood appears not anxious. He exhibits a depressed mood. He is 3 apathetic.” (AR 555.) Dr. Kaiden wrote “ANXIETY DISORDER (primary encounter 4 diagnosis) Note: vs MDD with anxious features.” (Id.) Dr. Kaiden prescribed 5 Citalopram. (Id.) 6 On February 15, 2012, Plaintiff saw Dr. Kaiden, complaining of shortness of 7 breath, cough, and chest pain. (AR 420.) Dr. Kaiden noted that the dyspnea had 8 been chronic for a year without a clear cause, but that Plaintiff “[h]as been noted 9 to have anxiety in the past.” (AR 422.) 10 On February 24, 2012, Plaintiff was treated by Carolyn Jean Ball, P.A. (AR 11 585.) Her progress notes state that Plaintiff scored 18 on Depression Patient 12 Health Questionnaire 9 (PHQ9) and that Plaintiff has “moderately severe 13 depression.” 14 depression resources and follow-up with his primary care physician regarding 15 antidepressant medication. 16 Citalopram prescription was discontinued because Plaintiff could not tolerate the 17 side effects. (AR 588.) (Id.) She discussed treatment options with Plaintiff, including (Id.) The progress note indicates that Plaintiff’s 18 The PHQ9 shows that Plaintiff reported: he had little interest or pleasure in 19 doing things more than half the time; felt down, depressed, and hopeless more 20 than half the days; had trouble falling or staying asleep more than half the days; 6 14cv3043 BTM(WVG) 1 had poor appetite nearly every day; felt bad about himself more than half the days; 2 and had trouble concentrating and experienced anxiety and restlessness nearly 3 every day. (AR 487.) Plaintiff reported that he had a history of depression which 4 started in 1998 when he suffered a back injury. 5 antidepressants over the years but they never seemed to help and he didn’t like 6 the side effects.” (Id.) (Id.) “Has tried various 7 On March 27, 2012, Ms. Ball followed up with Plaintiff. (AR 600.) at this 8 time, Plaintiff stated that he was feeling better and that his spirits had improved. 9 (Id.) The progress note states, “negative for major depression.” (Id.) 10 On September 7, 2012, Plaintiff saw Dr. Kaiden, complaining of fatigue, 11 dizziness, and headache. (AR 642.) Plaintiff denied depressive symptoms, and 12 Dr. Kaiden observed that his mood and affect were normal. (AR 643.) 13 14 B. Treatment of Dyspnea/Asthma 15 On January 5, 2012, Plaintiff was seen by Thomas Kyung Hwan Ro, M.D., 16 for chest discomfort and shortness of breath, which he reported having for about 17 a year. (AR 382.) On January 23, 2012, Plaintiff reported to Dr. Kaiden that he 18 had experienced shortness of breath for several years on and off, typically with 19 exertion such as going up the stairs. (AR 399.) Plaintiff’s examination was positive 20 for shortness of breath. (AR 403.) Dr. Kaiden’s primary encounter diagnosis was 7 14cv3043 BTM(WVG) 1 dyspnea. (AR 404.) 2 On February 17, 2012, Plaintiff was seen by Beau Vance Duwe, M.D. (AR 3 426.) Plaintiff complained of shortness of breath over the past year. He reported 4 that he gets short of breath taking stairs, sitting, and reading and that his symptoms 5 occur every day and last until he moves around. (AR 426.) Plaintiff explained that 6 when he gets short of breath, he develops sharp pain lasting a few minutes. (AR 7 427.) He also reported hearing wheezing from time to time. (AR 427.) Dr. Duwe’s 8 examination of Plaintiff was positive for cough, shortness of breath, and wheezing. 9 (AR 428.) Dr. Duwe’s primary encounter diagnosis was “shortness of breath.” (AR 10 11 12 429.) Dr. Duwe prescribed a trial of Combivent. (AR 430.) On February 23, 2012, Plaintiff reported that the Combivent was helping with his shortness of breath and wheezing. (AR 581.) 13 On March 15, 2012, Plaintiff followed up with Dr. Duwe. Plaintiff reported 14 that although there was a little improvement in his shortness of breath and less 15 wheezing after using Combivent, he still had episodes of chest pain and tightness 16 throughout the day and shortness of breath when reading in addition to a dry 17 cough. (AR 592.) Dr. Duwe’s examination of Plaintiff was positive for chest pain, 18 cough, shortness of breath, and wheezes. (AR 594.) The progress note indicates 19 a primary encounter diagnosis of asthma. (AR 595.) Dr. Duwe prescribed a trial 20 of Dulera and suggested that Plaintiff consider bronchoscopy if there was no 8 14cv3043 BTM(WVG) 1 improvement. (Id.) 2 On May 18, 2012, Plaintiff had another follow-up appointment with Dr. Duwe. 3 Plaintiff continued to complain of shortness of breath going up stairs or walking 25- 4 30 minutes. (AR 626.) Dr. Duwe’s examination was positive for shortness of 5 breath but negative for coughing or wheezing. (AR 628.) Dr. Duwe recommended 6 that Plaintiff continue using Combivent but consider discontinuing Dulera. (AR 7 629.) Dr. Duwe offered bronchoscopy to rule out endobronchial cause, but Plaintiff 8 declined. (AR 629.) 9 10 C. ALJ’s Failure to Address Plaintiff’s Mental Impairment and Dyspnea/Asthma 11 At step two of the disability determination, the ALJ must determine whether 12 the claimant has a medically severe impairment or combination of impairments. 13 In this case, the ALJ’s step-two analysis focused solely on Plaintiff’s back issue. 14 The ALJ did not make any reference to Plaintiff’s mental impairment or 15 dyspnea/asthma. 16 impairment and dyspnea/asthma rise to the level of a medically severe impairment, 17 either separately or in combination with other impairments, constitutes error and 18 requires a remand for further proceedings. 19 // 20 // The ALJ’s failure to consider whether Plaintiff’s mental 9 14cv3043 BTM(WVG) 1 1. Plaintiff’s Mental Impairment 2 In determining whether a claimant has a medically severe mental 3 impairment, the ALJ is bound by 20 C.F.R. § 404.1520a, which requires the 4 reviewer to (1) determine whether the claimant has a medically determinable 5 mental impairment; (2) rate the degree of functional imitation for four functional 6 areas (activities of daily living; social functioning; concentration persistence, or 7 pace; and episodes of decompensation); (3) determine the severity of the mental 8 impairment (based in part on the ratings of degree of functional limitation); and 9 (4) if it is found that the claimant has a severe mental impairment, determine 10 whether it meets or is equivalent in severity to a listed mental disorder. 11 The ALJ must complete a Psychiatric Review Technique Form (“PRTF”) and 12 “append it to the decision” or “incorporate its mode of analysis” into the ALJ’s 13 findings and conclusions. Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 725 14 (9th Cir. 2011). 15 conclusions required in application of the technique, including findings as to the 16 degree of limitation in the four functional areas, constitutes legal error. Id. at 726- 17 727. The error is not harmless if the claimant has a “colorable claim of mental 18 impairment.” Id. at 726. Failure of an ALJ to document the pertinent findings and 19 Here, there is no evidence that a PRTF was ever filled out. The ALJ did not 20 make any mention of Plaintiff’s mental impairment, let alone make findings 10 14cv3043 BTM(WVG) 1 consistent with 20 C.F.R. § 404.1520a. The ALJ’s error was not harmless because 2 Plaintiff has a colorable claim of mental impairment based on the medical records 3 discussed above, which show that Plaintiff was treated for anxiety/depression in 4 July 2010 and February 2012. Although there is nothing in the record showing that 5 Plaintiff experienced depression or anxiety after his episode of depression in 6 February 2012, Plaintiff reported a history of depression. 7 The Court notes that Plaintiff did not indicate that he suffered from a mental 8 impairment when applying for benefits. (AR 182; 248.) Nor did Plaintiff’s attorney 9 argue that Plaintiff suffered from a mental impairment at the hearing. Nonetheless, 10 the ALJ “has an independent duty to fully and fairly develop the record and to 11 assure that the claimant’s interests are considered.” Tonapetyan v. Halter, 242 12 F.3d 1144, 1150 (9th Cir. 2001) (internal quotation marks and citation omitted). 13 “This duty extends to the represented as well as to the unrepresented claimant.” 14 Id. 15 impairment was severe, and if the ALJ lacked sufficient information, she should 16 have ordered supplementation of the record and/or a consultative examination. 17 See Guerrero v. Astrue, 2009 U.S. Dist. LEXIS 23784, at * 25-29 (D. Haw. Feb. 18 13, 2009) (explaining that although the plaintiff never alleged a mental impairment 19 and her representative did not question her about a mental impairment, two reports 20 indicating a possible mental impairment were sufficient to trigger the ALJ’s duty to Therefore, the ALJ had a duty to determine whether Plaintiff’s mental 11 14cv3043 BTM(WVG) 1 develop the record); Xiong v. Astrue, 2009 WL 737030 (E.D. Cal. March 19, 2009) 2 (remanding case because ALJ failed to address plaintiff’s alleged depression and 3 develop the record in this regard, and directing ALJ to order a psychiatric 4 consultative examination of plaintiff); Pelletier v. Colvin, 2015 WL 5999214 (C.D. 5 Cal. Oct. 13, 2015) (holding that the presence of records identifying mental health 6 issues in addition to plaintiff’s testimony triggered the ALJ’s duty to conduct an 7 appropriate inquiry). 8 Accordingly, the Court remands this matter to the ALJ to conduct a proper 9 review regarding whether Plaintiff’s mental impairment is severe, and if so, whether 10 it meets or equals a listed impairment. If the record is inadequate for the ALJ to 11 properly evaluate the evidence, the ALJ must conduct an appropriate inquiry. 12 13 2. Plaintiff’s Dyspnea/Asthma 14 The ALJ did not make any reference to Plaintiff’s dyspnea/asthma at step 15 two or otherwise. As set forth above, the medical records show that Plaintiff was 16 treated on several occasions for dyspnea/asthma, and he reported that he had 17 experienced shortness of breath for several years on and off. 18 Defendant argues that the identification of Plaintiff’s dyspnea/asthma as 19 severe or non-severe was irrelevant because “the ALJ considered the functional 20 effect of all of his impairments, severe and non-severe.” (Doc. 23 at 9:10-13.) 12 14cv3043 BTM(WVG) 1 Defendant further argues that because no physician found any limitations as a 2 result of Plaintiff’s asthma, Plaintiff had no functional limitations and the ALJ 3 properly excluded them from the list of severe impairments and the residual 4 functional capacity assessment. (Id. at 9:24-10:3.) 5 However, there is no indication in the record that the ALJ determined one 6 way or the other whether Plaintiff’s dyspnea/asthma resulted in functional 7 limitations. 8 dyspnea/asthma resulted in functional limitations does not mean that Plaintiff in 9 fact had no functional limitations. In May 2012, Plaintiff complained of shortness 10 of breath going up stairs and walking 25-30 minutes despite his medications. 11 Whether he continued to have these issues or whether his condition got better or 12 worse is unclear. Furthermore, the lack of findings by a physician that Plaintiff’s 13 Because there is no evidence that the ALJ gave any consideration 14 whatsoever to Plaintiff’s dyspnea/asthma when performing her disability 15 determination, the Court also directs the ALJ upon remand to make appropriate 16 findings regarding the severity of Plaintiff’s dyspnea/asthma and any resulting 17 functional limitations. 18 // 19 // 20 // 13 14cv3043 BTM(WVG) 1 V. CONCLUSION 2 For the reasons discussed above, Plaintiff’s motion for summary judgment 3 [Doc. 19] is GRANTED and Defendant’s motion for summary judgment [Doc. 23] 4 is DENIED. 5 REMANDED for further proceedings consistent with this opinion. 6 IT IS SO ORDERED. 7 The Commissioner’s decision is VACATED and this matter is Dated: March 30, 2016 8 9 10 11 12 13 14 15 16 17 18 19 20 14 14cv3043 BTM(WVG)
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