(SS) Lara v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JESSICA MARIE LARA, No. 2:19-cv-1527-EFB 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security 15 Defendant. 16 17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) denying her application for Supplemental Security Income (“SSI”) under XVI 20 of the Social Security Act. The parties’ cross-motions for summary judgment are pending. ECF 21 Nos. 12 & 15. For the reasons discussed below, plaintiff’s motion for summary judgment is 22 granted and the Commissioner’s cross-motion is denied. The matter is remanded for additional 23 administrative proceedings. 24 BACKGROUND 25 Plaintiff filed an application for SSI on December 8, 2016, alleging that she had been 26 disabled since October 22, 2016. Administrative Record (“AR”) 163. Plaintiff’s application was 27 denied initially and upon reconsideration. Id. at 89-93, 102-106. On August 27, 2018, a hearing 28 was held before ALJ Daniel G. Heely (“ALJ”). Id. at 29-54. 1 On October 24, 2018, the ALJ issued a decision finding that plaintiff was not disabled 2 under section 1614(a)(3)(A) of the Act.1 Id. at 13-23. The ALJ made the following specific 3 findings: 4 1. The claimant has not engaged in substantial gainful activity since December 8, 2016, the 5 application date (20 CFR 416.971 et seq.). 6 *** 7 2. The claimant has the following severe impairments: spine disorders, neurocognitive disorder, and depressive order with anxiety (20 CFR 416.920(c)). 8 9 * * * 10 11 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid 12 to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to 13 “a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. 14 §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The 15 following summarizes the sequential evaluation: 16 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed 17 to step two. Step two: Does the claimant have a “severe” impairment? 18 If so, proceed to step three. If not, then a finding of not disabled is 19 appropriate. Step three: Does the claimant’s impairment or combination 20 of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically 21 determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past 22 work? If so, the claimant is not disabled. If not, proceed to step 23 five. Step five: Does the claimant have the residual functional 24 capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25 26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential 28 evaluation process proceeds to step five. Id. 1 3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart 2 P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). 3 * * * 4 4. After careful consideration of the entire record, the undersigned finds that the claimant has 5 the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except (sic) she able to understand, remember, and carry out simple instructions and make 6 simple work-related decisions; could tolerate a low level of work pressure defined as work 7 with no multitasking or detailed job tasks; able to work at a consistent pace throughout the work day but not at a production pace where each task must be performed within a strict 8 time deadline such as meeting a quick turnaround with no tolerance for discrepancies; never climb ladders, ropes or scaffolds; occasionally climb ramps or stairs; occasionally 9 balance, stoop, kneel, crouch or crawl; never work around hazards (such as moving, dangerous machinery or unprotected heights; and no operation of a motor vehicle [ )]. 10 11 * * * 12 5. The claimant has no past relevant work (20 CFR 416.965). 13 * * * 14 6. The claimant was born on June 2, 1972 and was 44 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963). 15 7. The claimant has a limited education and is able to communicate in English (20 CFR 16 416.964). 17 8. Transferability of job skills is an issue because the claimant does not have past relevant 18 work (20 CFR 416.968). 19 9. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the 20 claimant can perform (20 CFR 416.969 and 416.969(a)). 21 * * * 22 10. The claimant has not been under a disability, as defined in the Social Security Act, since 23 December 8, 2016, the date the application was filed (20 CFR 416.920(g)). 24 Id. at 15-22. 25 Plaintiff’s request for Appeals Council review was denied on June 25, 2019, leaving the 26 ALJ’s decision as Commissioner’s final decision. Id. at 2-3. 27 ///// 28 ///// 1 LEGAL STANDARDS 2 The Commissioner’s decision that a claimant is not disabled will be upheld if the findings 3 of fact are supported by substantial evidence in the record and the proper legal standards were 4 applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); 5 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 6 180 F.3d 1094, 1097 (9th Cir. 1999). 7 The findings of the Commissioner as to any fact, if supported by substantial evidence, are 8 conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is 9 more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th 10 Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a 11 conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 12 N.L.R.B., 305 U.S. 197, 229 (1938)). 13 “The ALJ is responsible for determining credibility, resolving conflicts in medical 14 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 15 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 16 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 17 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 18 ANALYSIS 19 In his decision, the ALJ credited the opinion of psychologist Dr. Lauri Stenbeck with 20 great weight. AR at 21. Plaintiff argues that the ALJ failed, however, to account for Dr. 21 Stenbeck’s assessment that plaintiff would have a moderate to marked limitation in completing a 22 normal workday or workweek. Id. at 484. She argues that this was reversible error and the court 23 agrees. 24 Dr. Stenbeck assessed the foregoing limitation “due to [plaintiff’s] symptoms of 25 depression and limited coping abilities that currently occur most days of the week and are likely 26 to be exacerbated in a stressful work environment.” Id. The RFC, as noted supra, reads: 27 After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light 28 work as defined in 20 CFR 416.967(b) except she (sic) able to 1 understand, remember, and carry out simple instructions and make simple work-related decisions; could tolerate a low level of work 2 pressure defined as work with no multitasking or detailed job tasks; able to work at a consistent pace throughout the work day but not at 3 a production pace where each task must be performed within a strict time deadline such as meeting a quick turnaround with no tolerance 4 for discrepancies; never climb ladders, ropes or scaffolds; occasionally climb ramps or stairs; occasionally balance, stoop, 5 kneel, crouch or crawl; never work around hazards (such as moving, dangerous machinery or unprotected heights; and no operation of a 6 motor vehicle [ )]. 7 Id. at 18. Nothing in the RFC adequately accounts for Dr. Stenbeck’s limitations regarding 8 attendance or completion of a work day. To be sure, the RFC does note that plaintiff only has the 9 capacity to “tolerate a low level of work pressure defined as work with no multitasking or 10 detailed job tasks,” but this limitation does not account for the plaintiff’s baseline problems with 11 depression and coping. Dr. Stenbeck’s limitations indicate that plaintiff’s depression and coping 12 problems are constant, problematic, and, even absent a stressful work environment, would (at a 13 minimum) cause difficulty maintaining attendance. Id. at 484, ¶ 3 (noting that plaintiff’s 14 depression would create moderate difficulty in maintaining regular and consistent attendance). 15 There are no limitations regarding attendance in the RFC. See Betts v. Colvin, 531 F. App’x 799, 16 800 (9th Cir. 2013) (holding that ALJ erred where they gave great weight to doctor’s opinion but 17 failed to account for ‘moderate’ limitations in completing normal workweek without 18 psychologically-based interruptions in the RFC); see also Melton v. Astrue, No. 09-CV-1000-BR, 19 2010 U.S. Dist. LEXIS 103334, *22 (D. Or. Sept. 28, 2010) (“Accordingly, the Court concludes 20 the ALJ erred in her assessment of Plaintiff’s RFC because she did not include Plaintiff’s mild-to- 21 moderate limitations in maintaining concentration, persistence, or pace.”). Moreover, at the 22 administrative hearing, the vocational expert testified that missing two days in a common month 23 would exclude the employment positions identified as viable for plaintiff. AR at 49. And “the 24 ALJ is responsible for translating and incorporating clinical findings into a succinct RFC.” 25 Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). Where an ALJ accords 26 substantial or great weight to a physician’s opinion, he must either incorporate their findings into 27 the RFC or offer an explanation for why he chose elected not to accept them. See, e.g., Martin v. 28 Comm’r of Social Security Administration, 472 F. App’x 580 (9th Cir. 2012) (unpublished) (“The wOoOe 2:4 UV BP MMVVUETIOCII TUR Ve tore PAY OV VI 1 | administrative law judge (ALJ) erred when formulating Martin's residual functional capacity 2 || (REC) because the RFC neither incorporated Dr. Steiner’s opinion of Martin’s work limitations 3 || nor gave specific and legitimate reasons for rejecting it.”); Neufeld v. Berryhill, No. 2:16-CV- 4 | 03644 (VEB), 2018 U.S. Dist. LEXIS 169475, *16 (C.D. Cal. Sept. 30, 2018) (“Having afforded 5 || ‘great weight’ to the opinions of Dr. Bartell and Dr. Loomis, the ALJ was bound to either 6 || incorporate their findings as to Plaintiff's limitations or explain why she decided not to accept 7 | them.”). Here, the ALJ failed to meet that obligation. 8 The only question that remains is whether to remand for additional administrative 9 || proceedings or for the award of benefits. ““The decision whether to remand a case for additional 10 || evidence, or simply to award benefits is within the discretion of the court.” Sprague v. Bowen, 11 | 812 F.2d 1226, 1232 (9th Cir. 1987). A court should remand for further administrative 12 || proceedings, however, unless it concludes that such proceedings would not serve a useful 13 || purpose. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2016). That the ALJ failed to account 14 | for a limitation in the RFC does not compel a decision that further administrative proceedings 15 || would serve no useful purpose. On remand, the ALJ will have the opportunity to weigh an 16 || attendance limitation and analyze whether jobs exist that plaintiff could perform in light thereof. 17 CONCLUSION 18 Accordingly, it is hereby ORDERED that: 19 1. Plaintiff’s motion for summary judgment (ECF No. 12) is GRANTED; 20 2. The Commissioner’s cross-motion for summary judgment (ECF No. 15) is DENIED; 21 3. This matter is REMANDED for additional administrative proceedings; and 22 4. The clerk is directed to enter judgment in plaintiff's favor and close the case. 23 | DATED: September 18, 2020. 24 Eg Vente, 4 hb LH AL 25 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 26 27 28