Tonya Church v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: March 23, 2021
• Docket: 5:19-cv-01225
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 TONYA C.,1 ) Case No. EDCV 19-1225-JPR 11 ) Plaintiff, ) 12 ) MEMORANDUM DECISION AND ORDER v. ) AFFIRMING COMMISSIONER IN PART 13 ) AND REVERSING IN PART ANDREW M. SAUL, ) 14 Commissioner of Social ) Security, ) 15 ) Defendant. ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner’s final decision 19 denying her applications for Social Security disability insurance 20 benefits (“DIB”) and supplemental security income benefits 21 (“SSI”). The matter is before the Court on the parties’ Joint 22 Stipulation, filed March 5, 2020, which the Court has taken under 23 submission without oral argument. For the reasons discussed 24 below, the Commissioner’s decision denying Plaintiff’s DIB 25 26 1 Plaintiff’s name is partially redacted in line with 27 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 1 application is affirmed, the decision denying the SSI application 2 is reversed, and this matter is remanded for further proceedings. 3 II. BACKGROUND 4 Plaintiff was born in 1980. (Administrative Record (“AR”) 5 231, 238.) She completed her GED (AR 295), obtained a vocational 6 nursing license (id.), and worked as a cashier, hostess, nurse, 7 and optical assistant (AR 282, 296). 8 On January 12 and 26, 2015, Plaintiff applied for DIB and 9 SSI, respectively, alleging that she had been unable to work 10 since May 11, 2007, because of fibromyalgia, depression, anxiety, 11 irritable bowel syndrome, colitis, and methicillin-resistant 12 staphylococcus aureus (“MRSA”).2 (AR 231, 238, 294.) After her 13 applications were denied initially (AR 117-26) and on 14 reconsideration (AR 128-39), she requested a hearing before an 15 Administrative Law Judge (AR 140-41). One was held on May 17, 16 2018, at which Plaintiff, who was represented by counsel, 17 testified, as did a vocational expert. (See AR 35-49.) In a 18 written decision issued June 27, 2018, the ALJ found her not 19 disabled. (AR 13-34.) She sought Appeals Council review (AR 20 229-30), which was denied on May 3, 2019 (AR 1-6). This action 21 followed. 22 III. STANDARD OF REVIEW 23 Under 42 U.S.C. § 405(g), a district court may review the 24 Commissioner’s decision to deny benefits. The ALJ’s findings and 25 26 2 MRSA is a staph infection that is difficult to treat 27 because of resistance to some antibiotics. Methicillin-Resistant Staphylococcus Aureus (MRSA), CDC, https://www.cdc.gov/mrsa/ 28 index.html (last visited Mar. 22, 2021). 2 1 decision should be upheld if they are free of legal error and 2 supported by substantial evidence based on the record as a whole. 3 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 4 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 5 means such evidence as a reasonable person might accept as 6 adequate to support a conclusion. Richardson, 402 U.S. at 401; 7 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 8 is “more than a mere scintilla, but less than a preponderance.” 9 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 10 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the 11 meaning of ‘substantial’ in other contexts, the threshold for 12 such evidentiary sufficiency is not high.” Biestek v. Berryhill, 13 139 S. Ct. 1148, 1154 (2019). To determine whether substantial 14 evidence supports a finding, the reviewing court “must review the 15 administrative record as a whole, weighing both the evidence that 16 supports and the evidence that detracts from the Commissioner’s 17 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 18 1998). “If the evidence can reasonably support either affirming 19 or reversing,” the reviewing court “may not substitute its 20 judgment” for the Commissioner’s. Id. at 720-21. 21 IV. THE EVALUATION OF DISABILITY 22 People are “disabled” for Social Security purposes if they 23 are unable to engage in any substantial gainful activity owing to 24 a physical or mental impairment that is expected to result in 25 death or has lasted, or is expected to last, for a continuous 26 period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin 27 v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 28 3 1 A. The Five-Step Evaluation Process 2 An ALJ follows a five-step sequential evaluation process to 3 assess whether someone is disabled. 20 C.F.R. §§ 404.1520(a)(4), 4 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 5 1995) (as amended Apr. 9, 1996). In the first step, the 6 Commissioner must determine whether the claimant is currently 7 engaged in substantial gainful activity; if so, the claimant is 8 not disabled and the claim must be denied. §§ 404.1520(a)(4)(i), 9 416.920(a)(4)(i). 10 If the claimant is not engaged in substantial gainful 11 activity, the second step requires the Commissioner to determine 12 whether the claimant has a “severe” impairment or combination of 13 impairments significantly limiting her ability to do basic work 14 activities; if not, a finding of not disabled is made and the 15 claim must be denied. §§ 404.1520(a)(4)(ii) & (c), 16 416.920(a)(4)(ii) & (c). 17 If the claimant has a “severe” impairment or combination of 18 impairments, the third step requires the Commissioner to 19 determine whether the impairment or combination of impairments 20 meets or equals an impairment in the Listing of Impairments 21 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix 22 1; if so, disability is conclusively presumed and benefits are 23 awarded. §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d). 24 If the claimant’s impairment or combination of impairments 25 does not meet or equal one in the Listing, the fourth step 26 requires the Commissioner to determine whether the claimant has 27 28 4 1 sufficient residual functional capacity (“RFC”)3 to perform her 2 past work; if so, she is not disabled and the claim must be 3 denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant 4 has the burden of proving she is unable to perform past relevant 5 work. Drouin, 966 F.2d at 1257. If the claimant meets that 6 burden, a prima facie case of disability is established. Id. 7 If that happens or if the claimant has no past relevant 8 work, the Commissioner bears the burden of establishing that the 9 claimant is not disabled because she can perform other 10 substantial gainful work available in the national economy, the 11 fifth and final step of the sequential analysis. 12 §§ 404.1520(a)(4)(v), 404.1560(b), 416.920(a)(4)(v), 416.960(b). 13 B. The ALJ’s Application of the Five-Step Process 14 At step one, the ALJ found that Plaintiff had not engaged in 15 substantial gainful activity since May 11, 2007, the alleged 16 onset date. (AR 19.) Her date last insured was December 31, 17 2012. (Id.) At step two, he determined that she had severe 18 impairments of fibromyalgia, irritable bowel syndrome, 19 “recurrent” MRSA infections, asthma, “cervical degenerative disc 20 disease,” carpal tunnel syndrome, bipolar disorder, post- 21 traumatic stress disorder, and “avoidant personality disorder.” 22 (Id.) 23 At step three, he found that Plaintiff’s impairments did not 24 25 3 RFC is what a claimant can do despite existing exertional 26 and nonexertional limitations. §§ 404.1545(a)(1), 416.945(a)(1); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 27 The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 28 2017) (citing § 416.920(a)(4)). 5 1 meet or equal any of the impairments in the Listing. (AR 19-21.) 2 At step four, he determined that she had the RFC to perform a 3 range of light work with the following limitations: “occasionally 4 lift and carry 20 pounds”; “frequently lift and carry 10” pounds; 5 “stand and walk (with normal breaks) for a total of 6 hours of an 6 8-hour workday”; “sit (with normal breaks) for a total of 6 hours 7 of [an] 8-hour workday”; “occasional[ly]” perform “postural” 8 movements; “no climbing ladders, ropes, or scaffolds”; “no 9 unprotected heights or dangerous moving machinery”; “frequent 10 bilaterally . . . reaching overhead, reaching all other 11 directions, handling, fingering, feeling, pushing and pulling 12 upper and lower”; “no concentrated exposure to operating a motor 13 vehicle, humidity, wetness, dusts, odors, fumes, pulmonary 14 irritants, extremes in cold, heat, and vibration”; “should be 15 . . . within 100 yards of a bathroom”; and “unskilled work with 16 only occasional interaction with the general public, coworkers 17 and supervisors.” (AR 21.) 18 The ALJ found that Plaintiff was unable to perform any past 19 relevant work (AR 25), but she could work as a photocopy-machine 20 operator or marker. (AR 26). Accordingly, he found her not 21 disabled. (AR 26-27.) 22 V. DISCUSSION 23 Plaintiff alleges that the ALJ erred in evaluating the 24 opinion of osteopath Sula Safar. (See J. Stip. at 5-9, 14-15.) 25 Because the ALJ failed to provide a specific and legitimate 26 reason for giving little weight to that opinion, the matter must 27 be remanded for further analysis and findings on the application 28 for SSI. 6 1 A. Applicable Law 2 Three types of physicians may offer opinions in Social 3 Security cases: those who directly treated the plaintiff, those 4 who examined but did not treat the plaintiff, and those who did 5 neither. See Lester, 81 F.3d at 830. A treating physician’s 6 opinion is generally entitled to more weight than an examining 7 physician’s, and an examining physician’s opinion is generally 8 entitled to more weight than a nonexamining physician’s. Id.; 9 see §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2).4 10 The ALJ may discount a physician’s opinion regardless of 11 whether it is contradicted. Magallanes v. Bowen, 881 F.2d 747, 12 751 (9th Cir. 1989); see also Carmickle v. Comm’r, Soc. Sec. 13 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). When a doctor’s 14 opinion is not contradicted by other medical-opinion evidence, 15 however, it may be rejected only for a “clear and convincing” 16 reason. Magallanes, 881 F.2d at 751 (citations omitted); 17 Carmickle, 533 F.3d at 1164 (citing Lester, 81 F.3d at 830-31). 18 When it is contradicted, the ALJ need provide only a “specific 19 and legitimate” reason for discounting it. Carmickle, 533 F.3d 20 at 1164 (citing Lester, 81 F.3d at 830-31). The weight given a 21 doctor’s opinion, moreover, depends on whether it is consistent 22 with the record and accompanied by adequate explanation, among 23 other things. See §§ 404.1527(c), 416.927(c); see also Orn v. 24 25 4 For claims filed on or after March 27, 2017, the rules in 26 §§ 404.1520c and 416.920c (not §§ 404.1527 and 416.927) apply. See §§ 404.1520c, 416.920c (evaluating opinion evidence for 27 claims filed on or after Mar. 27, 2017). Plaintiff’s claims were filed before March 27, 2017, however, and the Court therefore 28 analyzes them under former §§ 404.1527 and 416.927. 7 1 Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (factors in assessing 2 physician’s opinion include length of treatment relationship, 3 frequency of examination, and nature and extent of treatment 4 relationship). 5 B. Relevant Background 6 On October 26, 2016, Dr. Safar completed a preprinted 7 “MEDICAL OPINION RE: ABILITY TO DO WORK-RELATED ACTIVITIES 8 (PHYSICAL).” (AR 1459-61.) Dr. Safar’s check-box responses 9 indicated that Plaintiff could lift no more than 10 pounds 10 occasionally and less than 10 pounds frequently, stand and walk 11 less than two hours during an eight-hour day, sit less than two 12 hours during an eight-hour day, and sit or stand a maximum of 45 13 minutes before needing to change position. (AR 1459.) The 14 doctor opined that Plaintiff needed to walk around for 45 minutes 15 every 45 minutes, have the opportunity to shift at will from 16 sitting or standing and walking, and lie down at unpredictable 17 intervals every four to six hours. (AR 1460.) She could never 18 twist, stoop, bend, crouch, or climb stairs or ladders. (Id.) 19 She should avoid even moderate exposure to wetness, humidity, 20 noise, fumes, odors, dust, gases, and poor ventilation and all 21 exposure to extreme cold and heat and hazards. (AR 1461.) Her 22 impairments would cause her to be absent from work more than 23 three times a month. (Id.) 24 The statement noted that Plaintiff had “severe 25 fibromyalgia” and a “bulging disc” (AR 1460), and the 26 “[m]edication [used] to treat the pain cause[d] sedation” (AR 27 1461). The opinion did not indicate to what period it applied 28 (AR 1459-61), but the earliest treatment record from Dr. Safar 8 1 was dated April 11, 2016. (AR 2324; see also J. Stip. at 7.) 2 The ALJ gave “very little weight” to Dr. Safar’s opinion. 3 (AR 24.) He erroneously concluded that the form was completed by 4 a “Sula Sator,” from whom there were no supporting treatment 5 records. (AR 23.) Indeed, the ALJ only “presumed” that “Sator” 6 was even a doctor. (AR 23 n.1.) Because “there [were] no 7 records from [the doctor] to compare [the assessed] limitations 8 to in order to determine whether they [were] supported by [the] 9 examinations and treatment of [Plaintiff],” he assigned them 10 little value. (AR 23-24.) The only other reason he gave for 11 rejecting the functional assessment was that “the limitations 12 opined [were] not consistent with the records that show[ed] 13 normal examination signs despite allegations of pain and 14 fatigue.” (Id. (citations omitted).) Therefore, they were “not 15 supported by or consistent with the record[].” (AR 24.) 16 C. Analysis 17 As an initial matter, nothing indicates that Dr. Safar’s 18 opinion relates to Plaintiff’s limitations on or before her date 19 last insured. As noted, Dr. Safar’s October 2016 opinion did not 20 state to what period it applied (AR 1459-61), and the earliest 21 record of treatment from Dr. Safar is from April 2016 (see AR 22 2324), over three years after Plaintiff’s December 31, 2012 date 23 last insured (see AR 19). Thus, the doctor’s opinion has no 24 bearing on the DIB application, and Plaintiff has not argued 25 otherwise. See Grace E.F. v. Saul, No. 2:18-cv-09905-AFM, 2019 26 WL 6135029, at *6 (C.D. Cal. Nov. 19, 2019) (finding records from 27 over one year after date last insured not relevant to plaintiff’s 28 DIB claim when nothing in them purported to concern plaintiff’s 9 1 limitations on or before date last insured). Because Plaintiff 2 has asserted no other error on appeal, the DIB decision is 3 affirmed. 4 As to her application for SSI, Dr. Safar’s opinion was 5 inconsistent with that of consultative internist John Godes, who 6 opined that Plaintiff was capable of a significantly wider range 7 of work, including lifting and carrying 50 pounds occasionally 8 and 25 pounds frequently, standing and walking for six hours of 9 an eight-hour workday, sitting for six hours of an eight-hour 10 workday, and pushing and pulling without limitation. (AR 1489.) 11 Therefore, the ALJ needed to provide only a “specific and 12 legitimate reason” for discounting Dr. Safar’s opinion, 13 Carmickle, 533 F.3d at 1164 (citation omitted), but he failed to 14 do so. 15 To start, the ALJ misread Dr. Safar’s signature as “Sator” 16 and therefore erroneously concluded that “there [were] no records 17 from [the doctor] to . . . determine whether they . . . 18 supported” the limitations imposed. (AR 23.) On the contrary, 19 such treatment notes are in the record. (See, e.g., AR 2234-61, 20 2320-24.) Further, because the ALJ failed to recognize that Dr. 21 Safar completed the assessment form, he was also unaware of the 22 doctor’s credentials as an osteopath and only “presumed” a 23 medical degree. (AR 23 n.1.) 24 The ALJ also discounted Dr. Safar’s opinion because “the 25 limitations opined [were] not consistent with the records that 26 show[ed] normal examination signs despite allegations of pain and 27 fatigue.” (AR 23-34 (citations omitted).) He erred, however, in 28 not specifically identifying which aspects of Dr. Safar’s opinion 10 1 were inconsistent with which medical evidence. See Embrey v. 2 Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (holding that ALJ’s 3 determination that doctors’ opinions were contrary to objective 4 findings, including “relative lack of positive findings,” was not 5 sufficiently specific because ALJ provided only “conclusion” and 6 did not “explain” why his “interpretation . . . rather than the 7 doctors’” was correct); Weiskopf v. Berryhill, 693 F. App’x 539, 8 541 (9th Cir. 2017) (ALJ’s recitation of portions of physician’s 9 treatment notes and statement that physician’s opinion was 10 inconsistent with notes failed to set forth specific and 11 legitimate reason for rejecting opinion). The ALJ cited several 12 treatment notes that he stated “show[ed] normal examination 13 signs” (AR 23), but he did not identify what examination findings 14 were normal or explain how those normal findings were 15 inconsistent with any of the limitations Dr. Safar assessed. 16 Therefore, the ALJ’s analysis “does not achieve the level of 17 specificity” required by the Ninth Circuit. Embrey, 849 F.2d at 18 421. 19 The Court cannot conclude that the errors were harmless. 20 The ALJ did not compare Dr. Safar’s treatment records to the 21 limitations the doctor imposed “to determine whether they [were] 22 supported by [the] examinations and treatment of [Plaintiff].” 23 (AR 23.) The Court cannot predict how the ALJ would have 24 analyzed the issue had he identified a treating osteopath as the 25 author of the assessment and homed in on Dr. Safar’s treatment 26 notes in the more than 3300 pages of the record. Cf. Shepard v. 27 Colvin, No. CV 12-10468-VBK., 2013 WL 5183462, at *1 (C.D. Cal. 28 Sept. 11, 2013) (stating that court could not “engage in a 11 1 speculative, predictive exercise” of how Commissioner would have 2 evaluated new evidence that Appeals Council articulated no reason 3 for rejecting). And the VE testified at the hearing that there 4 would be no work for a person who could perform only less than 5 sedentary work and would miss three or more days of work a month, 6 as Dr. Safar opined. (AR 47-48.) 7 Although there were several medical opinions that conflicted 8 with Dr. Safar’s, the ALJ did not rely on the findings or 9 opinions of those providers to give Dr. Safar’s opinion little 10 weight. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 11 1225 (9th Cir. 2009) (district court must “review the ALJ’s 12 decision based on the reasoning and factual findings offered by 13 the ALJ — not post hoc rationalizations that attempt to intuit 14 what the adjudicator may have been thinking” (citations 15 omitted)). Indeed, although Defendant points to the contrary 16 opinion of Dr. Godes as supporting the ALJ’s rejection of Dr. 17 Safar’s opinion (see J. Stip. at 10-11), the ALJ in fact rejected 18 Dr. Godes’s opinion, too (see AR 23). 19 For all these reasons, the ALJ failed to provide a specific 20 and legitimate reason for discounting Dr. Safar’s functional 21 assessment, and the error was not harmless. 22 When, as here, an ALJ errs, the Court generally has 23 discretion to remand for further proceedings. See Harman v. 24 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as amended). When 25 no useful purpose would be served by further administrative 26 proceedings, however, or when the record has been fully 27 developed, it is appropriate under the “credit-as-true” rule to 28 direct an immediate award of benefits. Id. at 1179 (noting that 12 “the decision of whether to remand for further proceedings turns 2]}upon the likely utility of such proceedings”); see also Garrison 3 Colvin, 759 F.3d 995, 1019-20 (9th Cir. 2014). 4 Here, the record has not been fully developed, as the ALJ 5 |} did not understand who “Sator” was and thus did not have the 6 | opportunity to compare the doctor’s opinion to the corresponding 7 || treatment notes and assess it in the proper context. 8 If on remand the ALJ chooses to again give very little weight to Dr. Safar’s opinion, he can then provide an adequate 10 || discussion of the reasons why. Because other doctors found that 11 | Plaintiff could work with limitations, as noted by the ALJ (see 12 || generally AR 105-06, 1483-90; see also J. Stip. at 10-11 13 || (Defendant arguing same)), the Court has serious doubt as to 14 | whether she was disabled during any or all of the relevant 15 |} period. For this reason, too, remand is appropriate. See 16 || Garrison, 759 F.3d at 1021 (recognizing flexibility to remand for 17 | further proceedings when “record as a whole creates serious doubt 18 | that [plaintiff] is, in fact, disabled”). 19 VI. CONCLUSION 20 Consistent with the foregoing and under sentence four of 42 quU.S.c. § 405(g), IT IS ORDERED that judgment be entered AFFIRMING 22 the Commissioner’s decision denying Plaintiff’s DIB application, 23 REVERSING the Commissioner’s decision denying Plaintiff’s SSI 24 | application, GRANTING Plaintiff’s request for remand, and 25 REMANDING this action for further proceedings consistent with 26 |} this Memorandum Decision. i i bf, 7 27 | patep: March 23, 2021 JEAN ROSENBLUTH 28 U.S. Magistrate Judge 13