James Warren Simpson v. Andrew Saul

• Court: District Court, C.D. California
• Decided: January 26, 2021
• Docket: 8:19-cv-02270-PD
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 JAMES WARREN S.,1 Case No. 8:19-cv-02270-PD 13 Plaintiff, MEMORANDUM 14 OPINION AND ORDER v. 15 ANDREW M. SAUL, Commissioner 16 of Social Security, 17 Defendant.

18 19 20 Plaintiff filed this action seeking review of the Commissioner’s final 21 decision denying his application for supplemental security income. In 22 accordance with the Court’s case management order, the parties filed a Joint 23 Submission addressing the merits of the disputed issue. For the reasons 24 stated below, the decision of the Commissioner is reversed, and the action is 25 26 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court 27 Administration and Case Management of the Judicial Conference of the United States. 28 1 remanded. 2 I. FACTUAL BACKGROUND 3 4 On January 19, 2016, Plaintiff filed an application for Supplemental 5 Security Income benefits, alleging an inability to work since June 30, 2012, 6 based on memory deficit due to brain tumor, knee pain, and ankle pain. 7 [Joint Statement (“JS”) 2; Administrative Record (“AR”) 171-80, 209.] 8 Plaintiff’s application was denied administratively, and an Administrative 9 Law Judge (“ALJ”) issued an adverse decision after a hearing. [JS 2; AR 40- 10 63, 119-21.] The ALJ found that Plaintiff suffered from medically 11 determinable impairments but retained the residual functional capacity 12 (“RFC”) to perform the demands of past relevant work as a janitor. [JS 3-4; 13 AR 19-39.] The Appeals Council denied Plaintiff’s request for review [AR 16- 14 18], rendering the ALJ’s decision the final decision of the Commissioner. 15 The ALJ followed a five-step sequential evaluation process to assess 16 whether Plaintiff was disabled under the Social Security Act. 17 , 81 F.3d 821, 828 n.5 (9th Cir. 1995); 20 C.F.R. § 416.920. At step one, 18 the ALJ found that Plaintiff had not engaged in substantial gainful activity 19 since January 19, 2016, the application date. [JS 2; AR 23-24.] At step two, 20 the ALJ found that Plaintiff had the following severe impairments : “left knee 21 derangement; right ankle internal derangement; epilepsy; obesity; brain 22 tumor (right frontal oligodendroglioma), status post resection by right frontal 23 craniotomy on February 25, 2013, and cognitive disorder, not otherwise 24 specified (NOS); and borderline intellectual functioning (BIF) secondary to 25 brain tumor (right frontal oligodendroglioma) and epilepsy.” [AR 23, ¶ 2.] 26 The ALJ found that these impairments significantly limit the ability to 27 perform basic work activities. At step three, the ALJ found that Plaintiff 28 “does not have an impairment or combination of impairments that meets or 1 medically equals the severity of one of the listed impairments in 20 CFR Part 2 404, Subpart P, Appendix 1.” [AR 24, ¶ 3.] 3 Before proceeding to step four, the ALJ found that Plaintiff had the 4 RFC to perform the demands of “medium work” with noted exceptions. [AR 5 25 ] The ALJ included the following in his RFC assessment: 6 [Plaintiff]can perform simple tasks that require only simple work-related decisions and involve only 7 occasional changes in a routine work setting; have unlimited contact and interaction with supervisors as 8 necessary to receive work-task-related instructions but otherwise only occasional interaction with 9 coworkers; and no interaction with a member of the public to complete a work task. 10 [ ] 11 At step four, based on Plaintiff’s RFC, vocational background, and 12 testimony, and the vocational expert’s testimony, the ALJ found that Plaintiff 13 was capable of performing past relevant work as a janitor and thus was not 14 disabled within the meaning of the Social Security Act. [AR 33, ¶¶ 5, 6.] In 15 reaching this conclusion, the ALJ gave great weight to the opinion of 16 examining psychologist Dr. Paul Fernandez: 17 that [Plaintiff]’s overall cognitive ability fell within 18 the borderline range, that [Plaintiff] would have moderate difficulty with respect to the abilities to 19 understand, remember, and carry out detailed instructions, to maintain attendance and complete an 20 eight-hour workday in a regular workplace setting, and to interact appropriately with supervisors, 21 coworkers, and peers given his difficulties with comprehension, and that [Plaintiff] would otherwise 22 have no greater than mild difficulty with respect to work-related abilities . . . 23 [AR 29]. 24 II. DISPUTED ISSUE 25 Whether the ALJ erred in his formulation of Plaintiff’s RFC by ignoring 26 portions of Dr. Fernandez’ opinion and failing to include all of the limitations 27 28 1 opinion. 2 III. STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 5 decision to determine whether the Commissioner’s findings are supported by 6 substantial evidence and whether the proper legal standards were applied. 7 , 775 F.3d 1090, 1098 (9th Cir. 8 2014). An ALJ’s assessment of a claimant’s RFC must be affirmed if the ALJ 9 has applied the proper legal standard and substantial evidence in the record 10 as a whole supports the decision. , 427 F.3d 1211, 11 1217 (9th Cir. 2005). Substantial evidence means “more than a mere 12 scintilla” but less than a preponderance. , 402 U.S. 13 389, 401 (1971); , 504 F.3d 1028, 1035 (9th Cir. 2007). 14 Substantial evidence is “such relevant evidence as a reasonable mind might 15 accept as adequate to support a conclusion.” , 402 U.S. at 401. 16 This Court must review the record as a whole, weighing both the 17 evidence that supports and the evidence that detracts from the 18 Commissioner’s conclusion. , 504 F.3d at 1035. Where evidence 19 is susceptible of more than one rational interpretation, the Commissioner’s 20 decision must be upheld. , 495 F.3d 625, 630 (9th Cir. 21 2007). The Court may review only “the reasons provided by the ALJ in the 22 disability determination and may not affirm the ALJ on a ground upon which 23 he did not rely.” . (citing 340 F.3d 871, 874 (9th Cir. 24 2003)). 25 26 27 28 1 A. Relevant Medical Evidence 2 1. Drs. Brooks-Warren and Abrahimi 3 On June 21, 2016, Annette Brooks-Warren M.D. conducted a mental 4 residual functional capacity assessment of Plaintiff and found that he had 5 understanding and memory limitations, and that the following were 6 moderately limited: his ability to understand, remember and carry out 7 detailed instructions, his ability to complete a normal workday and workweek 8 without interruptions from psychologically based symptoms and to perform at 9 a consistent pace without an unreasonable number and length of rest periods, 10 his ability to interact appropriately with the general public, his ability to ask 11 simple questions or request assistance, his ability to get along with coworkers 12 or peers without distracting them or exhibiting behavioral extremes, his 13 ability to respond appropriately to changes in the work setting, his ability to 14 travel in unfamiliar places or use public transportation, and his ability to set 15 realistic goals or make plans independently of others. Dr. Brooks-Warren 16 concluded that Plaintiff has the ability to understand and remember simple 17 instructions, to attend and concentrate for periods of two hours as is required 18 in the workplace, to interact appropriately with peers and supervisors, but 19 that he should not work with the public, and the ability to adapt to routine 20 workplace changes. [AR 75-77.] 21 Pursuant to Plaintiff’s request for reconsideration of the denial of 22 benefits, on October 5, 2016, Heather Abrahimi, Psy.D., conducted a mental 23 residual functional capacity assessment of Plaintiff and made the same 24 finding as Dr. Brooks-Warren. [AR 92-94.] 25 26 27 28 1 On May 11, 2016, at Defendant’s request, Dr. Fernandez conducted a 2 psychological evaluation of Plaintiff and concluded that his overall cognitive 3 ability fell within the borderline range and that he had very significant 4 fluctuations between average range verbal ability, poor perceptual reasoning 5 in the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV), and 6 consistently low auditory memory that was quite significant on the Wide 7 Range Achievement Test IV and low as well on the WAIS IV. Dr. Fernandez 8 opined that Plaintiff had moderate difficulty in understanding, remembering, 9 and carrying out detailed instructions; in maintaining attendance and 10 completing an eight-hour workday in a regular workplace setting; and in 11 interacting appropriately with supervisors, coworkers, and peers given his 12 difficulties with comprehension. 13 The doctor also opined that Plaintiff had mild difficulty in 14 understanding and remembering visual information; in understanding, 15 remembering, and carrying out short and simplistic verbally based 16 instructions; in dealing with the usual stresses of a competitive workplace 17 setting and handling routine work changes; and possible mild difficulty 18 handling simplistic work-related decisions without special supervision. The 19 doctor further opined that Plaintiff had mild restrictions of daily activities, 20 mild difficulties in maintaining social functioning, and mild difficulties in 21 concentration, persistence, and pace. [JS 7-8; AR 371-72.] 22 B. Testimony of Vocational Expert 23 Vocational expert Joseph H. Torres testified at the hearing on October 24 4, 2018. [AR 40, 45.] After posing two hypothetical scenarios, the ALJ asked 25 the following: 26 If either of the first two hypothetical individuals additionally required unscheduled breaks that total 27 more than 10 percent of the time in an 8-hour workday in addition to regular breaks in a regular 28 and ongoing basis or, in the alternative, that instead 1 to arriving late, leaving early or missing a full day of work for a cumulative total of 3 or more day per 2 month on a regular and ongoing basis, would any such hypothetical individual be able to perform any of the 3 past work, any semi-skilled occupations utilizing skills that would transfer from the past work or any 4 unskilled occupations? 5 [AR 61.] The vocational expert responded, “I do not believe so, your honor.” 6 [Id.] The ALJ also confirmed that these breaks and absences from work are 7 not addressed by the DOT or its companion publications. 8 C. The ALJ’s Decision 9 In assessing Plaintiff’s RFC, the ALJ gave significant weight to the 10 opinions of Drs. Brooks-Warren and Abrahimi that Plaintiff had the mental 11 capacity to understand and remember simple instructions, attend and 12 concentrate for two hours at a time, interact appropriately with peers and 13 supervisors, and adapt to routine work changes but should not work with the 14 public. The ALJ also discussed at length and gave significant weight to Dr. 15 Fernandez’ opinion that Plaintiff’s overall cognitive ability fell within the 16 borderline range, that he would have moderate difficulty with respect to the 17 abilities to understand, remember, and carry out detailed instructions, to 18 maintain attendance and complete an eight-hour workday in a regular 19 workplace setting, and to interact appropriately with supervisors, coworkers, 20 and peers given his difficulties with comprehension, and that he would 21 otherwise have no greater than mild difficulty with respect to work-related 22 abilities, because these generally consistent opinions are supported by Dr. 23 Fernandez’ clinical examination findings and are generally consistent with 24 the other evidence including the medical evidence demonstrating that 25 Plaintiff’s symptoms remained generally stable at no worse than a mild-to- 26 moderate level on a persistent basis since the alleged onset date. 27

28 1 The ALJ found that the opinion of Dr. Fernandez that Plaintiff’s 2 neurocognitive deficits would limit interaction with coworkers and supervisors 3 to some degree was consistent with Plaintiff’s presentation during the 4 consultative examination and his presentation as documented by other 5 treating sources. Accordingly, the ALJ gave more weight to that portion of 6 Dr. Fernandez’s opinion than to the opinion of Drs. Brooks-Warren and 7 Abrahimi, the State agency psychological consultants, which did not include a 8 limitation with respect to interacting with coworkers and supervisors. D. Relevant Law 9 10 “In determining a claimant’s RFC, an ALJ must consider all relevant 11 evidence in the record.” , 466 F.3d 880, 883 (9th 12 Cir. 2006) (quotations omitted). The RFC – and any resulting hypothetical 13 presented to a vocational expert – “must set out all the limitations and 14 restrictions of the particular claimant.” 15 , 574 F.3d 685, 690 (9th Cir. 2009) (citation omitted, emphasis in 16 original). 17 “[T]he ALJ is responsible for translating and incorporating clinical 18 findings into a succinct RFC.” , 807 F.3d 19 996, 1006 (9th Cir. 2015); , 539 F.3d 1169, 1174 20 (9th Cir. 2008) (ALJ is responsible for translating a claimant’s condition and 21 limitations into an RFC that “adequately captures restrictions” to the 22 claimant’s ability to work. If an “RFC assessment failed to include all of [the 23 claimant’s] credible limitations,” the RFC – and any subsequent opinion of a 24 vocational expert – are “incomplete.” , 606 F. App’x 25 888, 890 (9th Cir. 2015); , 924 F.2d 841, 849 (9th Cir. 26 1991) (“expert’s testimony has no evidentiary value” if not based on “all of 27 claimant’s limitations”). 28 An ALJ who accords substantial or great weight to a physician’s opinion 1 must either incorporate the findings into the RFC or explain why the ALJ 2 chose not to accept them. , , 472 3 F. App’x 580 (9th Cir. 2012) (“The [ALJ] erred when formulating Martin’s 4 [RFC] because the RFC neither incorporated Dr. Steiner’s opinion of Martin’s 5 work limitations nor gave specific and legitimate reasons for rejecting it.”); 6 , 2018 WL 4739699 *6, (C.D. Cal. Sept. 30, 2018) (“Having 7 afforded ‘great weight’ to the opinions of Dr. Bartell and Dr. Loomis, the ALJ 8 was bound to either incorporate their findings as to Plaintiff’s limitations or 9 explain why she decided not to accept them.”); , 2015 WL 10 3849128, at *6 (C.D. Cal. 2015) (“despite the ALJ’s assertion that he afforded 11 [physician’s] opinion significant weight ..., the ALJ failed to explain why he 12 apparently rejected and did not include in the RFC determination 13 [physician’s] moderate limitations in the ability to perform work activities on 14 a consistent basis without special or additional supervision, and to complete a 15 normal workday or work week due to her mental condition”); , 16 2015 WL 7454509, at *4 (C.D. Cal. 2015) (error where medical opinion 17 restricting contact with numerous groups led to RFC restricting contact with 18 one group without adequate explanation). 19 E. Analysis 20 Dr. Fernandez opined that although Plaintiff demonstrated only a 21 possibly mild difficulty in handling simplistic work-related decisions without 22 special supervision, he demonstrated a moderate difficulty in maintaining 23 attendance, completing an eight-hour workday in a regular workplace setting, 24 and interacting appropriately with supervisors and coworkers, given his 25 difficulties with comprehension. [JS 7-8.] In formulating Plaintiff’s RFC, the 26 ALJ accorded Dr. Fernandez’s opinion “significant weight.” [JS 10.] The ALJ 27 determined that Plaintiff maintained the RFC as to do the following: 28 1 simple work-related decisions and involve only occasional changes in a routine work setting; have 2 unlimited contact and interaction with supervisors as necessary to receive work-task-related instructions 3 but otherwise only occasional interaction with coworkers; and no interaction with a member of the 4 public to complete a work task. 5 [AR 25.] Plaintiff contends that this assessment does not account for Dr. 6 Fernandez’s opinion that Plaintiff is moderately impaired in maintaining 7 regular attendance, completing an eight-hour workday in a regular workplace 8 setting, and interacting with supervisors. [JS 4-11, 14-15.] Defendant 9 responds that Plaintiff’s position, which does not object to the ALJ’s 10 assignment of weight to the various medical opinions and contends only that 11 the ALJ should have included the above-listed impairments in the RFC, is 12 precluded by the Ninth Circuit’s decision in , 539 F.3d at 13 1173-74. [JS 12.] 14 In , the plaintiff argued the ALJ’s assessment that she 15 had the RFC to perform simple, routine, repetitive sedentary work requiring 16 no interaction with the public failed to capture mental limitations identified 17 by examining doctors. . at 1163. In rejecting this argument, the Ninth 18 Circuit cited an examining doctor’s opinion that the plaintiff retained the 19 ability to carry out simple tasks, and that the ALJ had translated that 20 condition into the only available concrete restrictions, i.e., simple, routine, 21 repetitive tasks. “[A]n ALJ’s assessment of a claimant adequately captures 22 restrictions related to concentration, persistence, or pace where the 23 assessment is consistent with restrictions identified in the medical 24 testimony.” . at 1174. 25 This case is factually distinguishable from . Here, the 26 assessment that Plaintiff can perform work involving simple, repetitive tasks 27 requiring only simple work-related decisions and involving only occasional 28 1 changes in a routine work setting, with unlimited contact and interaction 2 with supervisors as necessary to receive work-related instructions but 3 otherwise only occasional interaction with coworkers, does not address the 4 moderate limitations found by Dr. Fernandez in Plaintiff’s ability to maintain 5 regular attendance, interact with a supervisor, or complete an eight-hour 6 workday in a regular workplace. The ALJ did address these limitations in 7 hypotheticals posed to the vocational expert, as noted above, but did not 8 incorporate them in the RFC assessment. 9 Courts have regularly held that an ALJ is required to either explicitly 10 reject or include in the RFC the same moderate limitations Dr. Fernandez 11 assessed in this case. ., , 458 F. App’x 640, 641 12 (9th Cir. 2011) (ALJ erred in omitting consultant’s opinion that the plaintiff 13 was moderately impaired in the ability to maintain regular attendance, 14 sustain an ordinary routine, and complete a normal work day or workweek 15 without interruption without providing an explanation for why these 16 limitations were not included in the RFC, even though ALJ claimed to give 17 great weight to those assessments); , 319 Fed. App’x 543, 545- 18 46 (9th Cir. 2009) (ALJ erred in omitting consultative examining 19 psychologist’s moderate limitations in the RFC, despite claiming to credit 20 psychologist’s opinion); , 2020 WL 2079972, at *6 (C.D. 21 Cal. Apr. 30, 2020) (ALJ’s RFC assessment fairly accommodated moderate 22 limitations in the ability to maintain attention and concentration, but did not 23 address moderate limitations in maintaining regular attendance or 24 performing at a consistent pace without an unreasonable number and length 25 of rest periods); , 2018 WL 3691842, at *6 (C.D. Cal. 26 Aug. 2, 2018) (“Although the ALJ’s restriction for unskilled work may 27 encompass Plaintiff’s moderate limitations in concentration, persistence, and 28 pace, the RFC does not sufficiently account for Plaintiff’s moderate limitations 1 in [. . .] maintaining consistent attendance in the workplace.”); 2 , 2015 WL 501466, at *1 (C.D. Cal. Feb. 5, 2015) (ALJ’s RFC limiting 3 claimant’s contact with the public did not account for physician’s opinion that 4 claimant was limited in ability to interact with co-workers and supervisors). 5 While moderate limitations do not necessarily indicate that Plaintiff is 6 unable to perform all work activity, the ALJ was required to either include 7 these limitations in Plaintiff’s RFC assessment or provide legally sufficient 8 reasons for rejecting them. , 2017 WL 5186333, at *3 9 (C.D. Cal. Nov. 8, 2017) (although moderate limitations in various areas of 10 functioning, such as in the ability to maintain regular attendance or to 11 complete a normal workday are not per se disabling, the ALJ erred in 12 assessing RFC without either including the limitations or offering specific 13 reasons for rejecting opinion). Here, the ALJ provided no reason for failing to 14 include the limitations in his RFC assessment. This was error. 15 Moreover, since the ALJ improperly discounted Dr. Fernandez’s opinion 16 in assessing the RFC and found Plaintiff capable of performing work based on 17 that RFC, the error affected the ultimate disability determination and is not 18 harmless. e, 674 F.3d 1104, 1115 (9th Cir. 2012), 19 , 820 F. 20 App’x 604, 606 (9th Cir. 2020) (in the Ninth Circuit, “[H]armless error 21 principles apply in the Social Security Act context. [. . . ] [I]n each case we look 22 at the record as a whole to determine [if] the error alters the outcome of the 23 case.”); ., 533 F.3d 1155, 1162 (9th Cir. 24 2008) (an ALJ’s error is harmless where it is “inconsequential to the ultimate 25 nondisability determination.”). 26 In sum, the Court finds that the ALJ did not properly consider the 27 examining opinion evidence in assessing Plaintiff’s RFC, and remand is 28 warranted. 1 2 The decision whether to remand for further proceedings or order an 3 immediate award of benefits is within the district court’s discretion. 4 , 211 F.3d 1172, 1175-1178 (9th Cir. 2000). “When the ALJ denies 5 benefits and the court finds error, the court ordinarily must remand to the 6 agency for further proceedings before directing an award of benefits.” 7 , 880 F.3d 1041, 1045 (9th Cir. 2017). Indeed, Ninth Circuit case law 8 “precludes a district court from remanding a case for an award of benefits 9 unless certain prerequisites are met.” , 808 F.3d 403, 407 10 (9th Cir. 2016) (citations omitted). “The district court must first determine 11 that the ALJ made a legal error, such as failing to provide legally sufficient 12 reasons for rejecting evidence. If the court finds such an error, it must next 13 review the record as a whole and determine whether it is fully developed, is 14 free from conflicts and ambiguities, and all essential factual issues have been 15 resolved.” , 808 F.3d at 407 (citation and internal quotation marks 16 omitted). 17 The issues concerning limitations opined to by Dr. Fernandez “should be 18 resolved through further proceedings on an open record before a proper 19 disability determination can be made by the ALJ in the first instance.” 20 , 806 F.3d 487, 496 (9th Cir. 2015); , 21 775 F.3d at 1101 (remand for award of benefits is inappropriate where “there 22 is conflicting evidence, and not all essential factual issues have been 23 resolved”) (citation omitted); , 635 F.3d 24 1135, 1138 (9th Cir. 2011) (same where the record does not clearly 25 demonstrate the claimant is disabled within the meaning of the Social 26 Security Act). Accordingly, the appropriate remedy is a remand for further 27 administrative proceedings. 28 VI. CONCLUSION

IT IS THEREFORE ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for 4 further administrative proceedings consistent with this opinion. > IT IS FURTHER ORDERED that the Clerk of the Court serve copies of 6 this Order and the Judgment on counsel for both parties. 7 8 DATED: January 26, 2021 9 10 os ll A pb neier Lonahoe_ PATRICIA DONAHUE IS UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

1 NOTICE: THIS DECISION IS NOT INTENDED FOR PUBLICATION IN 2 WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 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