Stenerson v. Saul

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRIN L. S., Case No.: 21cv385-KSC

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION FOR SUMMARY JUDGMENT [Doc. No. 21]; 14 KILOLO KIJAKAZI, Acting DENYING DEFENDANT’S CROSS- Commissioner of Social Security, 15 MOTION FOR SUMMARY Defendant. JUDGMENT [Doc. No. 24]; AND 16 REMANDING FOR FURTHER 17 ADMINISTRATIVE PROCEEDINGS

18 19 Plaintiff Darrin L. S. seeks review of the Acting Commissioner of Social Security’s 20 denial of his application for disability benefits. Doc. No. 8. Currently before the Court is 21 plaintiff’s Motion for Summary Judgment [Doc. No. 21], defendant’s Opposition and 22 Cross-Motion for Summary Judgment [Doc. No. 24], and plaintiff’s Reply [Doc. No. 25]. 23 For the reasons outlined below, the Court GRANTS plaintiff’s Motion for Summary 24 Judgment, DENIES defendant’s Cross-Motion for Summary Judgment, and REMANDS 25 the case for further administrative proceedings. 26 I. Background and Procedural History. 27 Plaintiff filed an application for Social Security disability insurance benefits on 28 February 4, 2019, alleging he was disabled as of February 1, 2017, and had stopped 1 working because of his medical condition. AR 143-153. The Social Security 2 Administration (“SSA”) denied his application initially and on reconsideration. Doc. 3 Nos. 83-86, 90-94. Plaintiff requested and received an Administrative Law Judge (“ALJ”) 4 hearing. AR 33-53, 97-99. The ALJ found plaintiff not disabled. AR 12-32. The Appeals 5 Counsel denied plaintiff’s request for review [AR 1-6] and this case followed [Doc. No. 1]. 6 II. The ALJ’s Decision. 7 The ALJ followed the Commissioner’s five-step sequential evaluation process for 8 determining whether an applicant is disabled. 20 C.F.R. § 404.1520(a). 9 At step one the ALJ found plaintiff had “not engaged in substantial gainful activity 10 since January 31, 2019.” AR 17. 11 At step two, the ALJ found plaintiff had the following medically determinable severe 12 impairments: lumbar degenerative disc disease, history of hernia repair, migraine 13 headaches, history of scoliosis of the cervical and thoracic spine, and depressive disorder. 14 Id. The ALJ also concluded that plaintiff’s hypertension, hyperlipidemia, history of right 15 arm fracture, history of left shoulder fracture, and history of tremors are non-severe because 16 they do not cause more than a minimal limitation in his ability to perform basic work 17 activities. AR 18-19. 18 At step three, the ALJ concluded that plaintiff’s impairments, whether considered 19 alone or in combination, do not meet or equal any of the relevant listings in the SSA’s 20 Listing of Impairments. AR 19-20. 21 22 23 24

25 1 “AR” refers to the Administrative Record lodged on October 5, 2022. Doc. No. 15. The 26 Court’s citations to the AR use the page references on the original document rather than 27 the page numbers designation by the Court’s case management/electronic case filing system (“CM/ECF”). For all other documents, the Court’s citations are to the page numbers 28 1 Before proceeding to step four, the ALJ determined plaintiff had the residual 2 functional capacity (“RFC”) to perform light work2 except he is able to “lift and carry 20 3 pounds occasionally and ten pounds frequently; stand[] and/or walk[] for six hours in an 4 eight-hour workday; sit[] for six hours in an eight-hour workday; [] occasionally climb 5 ropes, ladders, or scaffolds and ramps and stairs; [] occasionally balance, stoop, kneel, 6 crouch, and crawl; [] frequently reach overhead on the right; frequently [use] gross 7 manipulation on the right; [] only occasionally use hand tools requiring torqueing motion 8 or pressure; [] understand, remember, and carry out simple instructions and tasks; [] [and] 9 respond appropriately to supervisors and coworkers in a task oriented setting where contact 10 with others is casual and infrequent.” AR 20-21. However, he “should avoid concentrated 11 exposure to loud noise and vibration. . . [and] should not work in a setting which includes 12 constant or regular contact with the general public or more than infrequent handling of 13 customer complaints.” Id. 14 At step four, the ALJ concluded plaintiff had no past relevant work. AR 26. 15 At step five, the ALJ accepted Vocational Expert (“VE”) opinion testimony and 16 concluded “jobs . . . existed in significant numbers in the national economy that [plaintiff] 17 could perform,” including a Raw Shellfish Preparer; a Housekeeper/ Cleaner; and a 18 Routing Clerk. AR 27. 19 / / 20 / / 21

22 23 2 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very 24 little, a job is in this category when it requires a good deal of walking or standing, or when 25 it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have 26 the ability to do substantially all these activities. If someone can do light work, we 27 determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. 28 1 III. Standard of Review. 2 The Court reviews the ALJ’s decision to determine whether the ALJ applied the 3 proper legal standards and whether the decision is supported by substantial evidence. 4 42 U.S.C. § 405(g); Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). 5 Substantial evidence is “such relevant evidence as a reasonable mind might accept as 6 adequate to support a conclusion.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 7 (quotations omitted), superseded by regulation on other grounds as stated in Thomas v. 8 Saul, 830 Fed. App’s 196, 198 (9th Cir. 2020). It is “more than a mere scintilla but, less 9 than a preponderance . . . .” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting 10 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). 11 The Court “must consider the entire record as a whole and may not affirm simply by 12 isolating a specific quantum of supporting evidence.” Ghanim v. Colvin, 763 F.3d 1154, 13 1160 (9th Cir. 2014) (internal quotation omitted). The Court may not impose its own 14 reasoning to affirm the ALJ’s decision. See Garrison, 759 F.3d at 1010. “[I]f evidence 15 exists to support more than one rational interpretation, [then the Court] must defer to the 16 [SSA]’s decision.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 17 2004) (citing Morgan v. Comm’r of the SSA, 169 F.3d 595, 599 (9th Cir. 1999). The Court 18 will not reverse the ALJ's decision if any error is harmless. Marsh v. Colvin, 792 F.3d 1170, 19 1173 (2015) (“ALJ errors in social security cases are harmless if they are inconsequential 20 to the ultimate nondisability determination and that a reviewing court cannot consider [an] 21 error harmless unless it can confidently conclude that no reasonable ALJ . . . could have 22 reached a different disability determination.”) (internal citations and quotations omitted). 23 IV. Discussion 24 Plaintiff argues “[t]he ALJ failed to properly consider the consultative examiner’s 25 opinion.” Doc. No. 21-1 at 4-8. Plaintiff contends board certified psychiatrist Dr. Jaga 26 Nath Glassman’s “opinion is supported and consistent with the record” and “[t]he ALJ’s 27 reasons for finding otherwise are not supported by substantial evidence.” Id. at 8. 28 1 Plaintiff filed his claim after March 27, 2017; therefore, the 2017 amendments 2 governing medical opinions apply. Woods v. Kijakazi, 32 F.4th 785, 789 (9th Cir. 2022). 3 Under those amendments, the SSA “will not defer or give any specific evidentiary weight, 4 including controlling weight, to any medical opinion(s) or prior administrative medical 5 finding(s), including those from . . . medical sources.” 20 C.F.R. § 404.1520c(a). Instead, 6 all medical opinions are evaluated based on supportability, consistency, relationship with 7 the claimant, specialization, and other factors. Id. § 404.1520c(c). The SSA is required to 8 explain how it considered the most important factors, supportability and consistency, but 9 is not required to explain how it considered the other factors. Id. § 404.1520c(b)(2). “Even 10 under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion 11 as unsupported or inconsistent without providing an explanation supported by substantial 12 evidence.” Woods, 32 F.4th at 792. 13 On June 23, 2019, Dr. Glassman, made a psychiatric disability evaluation based on 14 his mental status examination of plaintiff and review of plaintiff’s La Maestra Community 15 Health Center records. AR 323-27. Dr. Glassman noted “during the examination [plaintiff] 16 presented as extremely depressed-appearing, with a sense of underlying rage and 17 volatility.” AR 327. Dr. Glassman further observed: 18 [plaintiff] was very poorly engaged . . . completely avoided eye contact, [and] spoke in a soft monotone, giving very brief responses. He was very agitated, 19 tense, with a sense of underlying rage and potential volatility, and it was scary 20 to be with him. I felt I had to “tread very carefully,” there were marked signs of psychomotor agitation. He rocked back and forth in an agitated manner 21 throughout the interview. He clenched his fists at all times. He twisted 22 Kleenex into tight wads. I thought he might be psychotic. There was an odd quality, with some odd and poor relatedness. 23

24 . . .

25 Cognitively, he presented as of possible low-average intellectual functioning. 26 . . . 27

28 1 He stated he has been depressed since his wife was murdered in his 20s, and apparently has become more severely depressed over the last two to three 2 years, since the injury to his right arm. 3 4 AR 326-27. 5 Dr. Glassman’s diagnosis was: severe major depression; probably somatic symptom 6 disorder; history of adolescent conduct problems; possible dysfunctional personality 7 features; musculoskeletal/orthopedic problems; and a GAF of 45, noting “[plaintiff’s] level 8 of functioning appears to be quite impaired.” AR 327. Dr. Glass then opined plaintiff had 9 marked impairment in his capacity to: “get along adequately with others and . . . behave in 10 a socially appropriate manner; . . . understand and follow even simple instructions 11 consistently; . . . maintain concentration, persistence, and pace, and to adapt to changes and 12 stresses in the workplace setting. He is not currently in any kind of psychiatric or mental 13 health treatment, which could help decrease symptoms and improve his functioning.” Id. 14 The ALJ concluded: 15 Dr. Glassman’s opinion was unpersuasive because it was inconsistent with and not supported by the objective medical evidence. Dr. Glassman’s opinion 16 appeared to rely almost purely on the claimant’s presentation during the 17 evaluation. The claimant’s effort at both consultative evaluations was questionable and his intimidating presentation at the evaluation with 18 Dr. Glassman contrasted sharply with his presentation with his treating 19 medical providers. The claimant has not sought any significant mental health treatment since February 2019, and he was negative for depression in 20 February 2020. The objective medical evidence did not support marked 21 limitations. The claimant’s mental and social limitations would not preclude the performance of all competitive work. 22

23 AR 26. 24 The ALJ’s conclusion that Dr. Glassman’s opinion was “not supported by the 25 objective medical evidence. . . [and] appeared to rely almost purely on [plaintiff’s] 26 presentation during the evaluation,” is not supported by substantial evidence. Dr. 27 Grossman’s clinical interview and mental status examination of plaintiff are objective 28 measures for evaluating psychiatric conditions like depressive disorder. See Buck v. 1 Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (finding ALJ erred in rejecting psychiatric 2 opinion and holding these “clinical interview[s] and ... mental status evaluation[s] ... are 3 objective measures and cannot be discounted as a ‘self-report.’”); Mickayla Lynne Marie 4 P. v. Comm’r of Soc. Sec., No. 22-cv-5183-DWC, 2022 WL 4131597 at *2 (W.D. Wash. 5 Sept. 12, 2022) (finding ALJ erred in determining that a psychiatrist opinion was 6 “unsupported by objective findings” when the doctor conducted a mental status 7 examination.) 8 The ALJ’s conclusion that plaintiff’s effort during Dr. Glassman’s evaluation was 9 “questionable” is based on his own interpretation of that examination and, therefore, is also 10 not supported by substantial evidence.3 See Tackett v. Apfel, 180 F.3d 1094, 1102–03 (9th 11 Cir. 1999) (ALJ may not substitute his own interpretation of the medical evidence for the 12 opinion of medical professionals); Morales v. Apfel, 225 F.3d 310, 319 (3rd Cir. 2000) 13 (“The principle that an ALJ should not substitute his lay opinion for the medical opinion 14 of experts is especially profound in a case involving a mental disability”). 15 The ALJ’s finding that Dr. Glassman’s opinion was inconsistent with plaintiff’s lack 16 of mental health treatment is not supported by the record or the law. AR 26. Dr. Glassman 17 considered plaintiff’s lack of treatment in forming his opinion. AR 324. Moreover, the 18 Ninth Circuit has “criticized the use of a lack of treatment to reject mental complaints both 19 because mental illness is notoriously underreported and because it is a questionable 20 practice to chastise one with a mental impairment for the exercise of poor judgment in 21 seeking rehabilitation.” Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1299- 22 300 (9th Cir. 1999) (internal quotation and citation omitted); see also Dupree v. Astrue, 23

24 25 3 The SSA argues the ALJ’s decision is supported by a January 2016 “disability investigation indicat[ing] that plaintiff was functioning at a higher level than he alleged.” 26 Doc. No. 24 at 7. However, the ALJ found this report “unpersuasive.” AR 22. Moreover, 27 the ALJ did not rely on this report in rejecting Dr. Glassman’s opinion and the Court is “constrained to review the reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 28 1 No. C08-5211-KLS, 2009 WL 367203, at *5 (W.D. Wash. Feb. 6, 2009) (“Nor does the 2 Court find the ALJ's statement that there is little evidence in the record of plaintiff having 3 sought and undergone treatment an adequate basis on which to reject those limitations, 4 especially given that Dr. Essink appears to have been well aware of the lack of such 5 treatment on plaintiff's part.”). 6 The ALJ’s error was not harmless. For example, Dr. Glassman opined that plaintiff 7 had marked impairment in his capacity to: “understand and follow even simple instructions 8 consistently . . . [and] maintain concentration, persistence, and pace.” AR 327. The VE 9 testified that a hypothetical individual “who can’t follow even simple, repetitive 10 instructions” or is “off task 15% or more of the workday” due to “concentration and 11 persistence and pace issues” would not be able to maintain employment. AR 52. In contrast, 12 the ALJ concluded plaintiff is “able to understand, remember, and carry out simple 13 instructions and tasks . . . and respond appropriately to supervisors and coworkers in a task- 14 oriented setting.” AR 20-21. The Court, therefore, cannot conclude the ALJ’s failure to 15 properly consider Dr. Glassman’s opinion was inconsequential to the disability 16 determination. See Sawyer v. Astrue, 303 Fed. Appx. 453, 455 (9th Cir. 2008) (ALJ’s failure 17 to properly consider medical opinions not harmless because error was “directly relevant to 18 the ultimate issue” of the plaintiff’s capacity for exertion.”) 19 Here remand is required, at a minimum, in order for the ALJ to reevaluate the 20 medical evidence. See Bunnell v. Barnhart, 336 F.3d 1112, 1116 (9th Cir. 2003) 21 (remanding for further administrative proceedings where “outstanding issues” remained to 22 be resolved and it was “not clear from the record that an [ALJ] would be required to find 23 the claimant disabled and award disability benefits”); Trevizo v. Berryhill, 871 F.3d 664, 24 682 (9th Cir. 2017) (“The decision whether to remand a case for additional evidence, or 25 simply to award benefits is within the discretion of the court.”) 26 / / 27 / / 28 / / 1 V. Conclusion 2 Based on the foregoing, plaintiff's Motion for Summary Judgement is GRANTED 3 ||[Doc. No. 21], defendant’s Cross-Motion for Summary Judgment is DENIED [Doc. 4 || No. 24], and the case is REMANDED for further proceedings consistent with this Order. 5 IT IS SO ORDERED. 6 Dated: September 1, 2023 JE. Le

g Hori. Karen 8S. Crawford 9 United States Magistrate Judge

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28