(SS) French 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 CHARLES FRENCH, No. 2:18–cv–2191–KJM–KJN 12 Plaintiff, ORDER 13 v. 14 ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 On February 19, 2020 the magistrate judge filed findings and recommendations 18 (“Findings”), ECF No. 17, which were served on the parties and which contained notice that any 19 objections to the findings and recommendations were to be filed within ten (10) days. Defendant 20 has filed objections to the findings and recommendations, Def.’s Objs., ECF No. 18, and plaintiff 21 has filed a response to the objections, ECF No. 19, both of which the court has considered. 22 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 23 this court has conducted a de novo review of the case. Having reviewed the file, the court 24 DECLINES to adopt the findings and recommendations for the reasons explained below. 25 The magistrate judge finds this case is distinguishable from Stubbs-Danielson v. 26 Astrue, 539 F.3d 1169 (9th Circ. 2008), in the same way the Ninth Circuit distinguished the facts 27 of Brink v. Comm’r Soc. Sec. Admin., 343 Fed. App’x 211 (9th Cir. 2009) from Stubbs-Danielson 28 in its opinion in Brink. Namely, the magistrate judge points to the fact that, in Brink and in this 1 case, the ALJ accepted medical evidence of the claimant’s difficulty with concentration, 2 persistence or pace, but nonetheless found the claimant could perform “simple, repetitive work.” 3 Brink, 343 Fed. App’x at 212. See Findings at 5–6. 4 However, this case appears to be controlled by Stubbs-Danielson and not the 5 reasoning in Brink. The ALJ in Stubbs-Danielson did, in fact, rely on at least one medical report 6 by a Dr. Eather that “identified ‘a slow pace, both in thinking & actions’ and several moderate 7 limitations in other mental areas[.]” Stubbs-Danielson, 539 F.3d at 1173; but see Brink, 8 343 F. App’x at 212 (“The medical testimony in Stubbs-Danielson, however, did not establish any 9 limitations in concentration, persistence, or pace.”).1 The same medical report nonetheless 10 concluded the claimant “retained the ability to ‘carry out simple tasks[.]’” Stubbs-Danielson, 11 539 F.3d at 1173. Therefore, the court found, the ALJ “translated [the claimant’s] condition, 12 including the pace and mental limitations, into the only concrete restrictions available to him—Dr. 13 Eather’s recommended restriction to ‘simple tasks.’” Id. at 1174; see also Israel v. Astrue, 494 14 Fed. App’x 794, 796 (9th Cir. 2012) (characterizing Stubbs-Danielson as approving the ALJ’s 15 translation of Stubbs-Danielson’s moderate limitation in pace into the concrete restriction that he 16 be limited to “simple tasks,” because the ALJ’s assessment was “consistent with restrictions 17 identified in the medical testimony”). In Brink, by contrast, the ALJ “speculatively translate[d] a 18 moderate limitation in concentration, persistence, or pace into a concrete restriction” “without 19 substantial evidence[.]” Chavez v. Colvin, No. 215CV01563JADNJK, 2016 WL 8732079, at *8 20 (D. Nev. July 1, 2016) (citing Brink, 343 F. App’x at 212; Israel, 494 F. App’x at 796), report and 21 recommendation adopted, No. 215CV01563JADNJK, 2016 WL 7440470 (D. Nev. Dec. 27, 22 2016) (noting Ninth Circuit’s limitation of Brink “to cases where an ALJ, without substantial 23 evidence, speculatively translates a moderate limitation in concentration, persistence, or pace into 24 a concrete restriction.”). The ALJ in Brink “accepted medical evidence that Brink has moderate 25 difficulty maintaining concentration, persistence, or pace.” Brink, 343 F. App'x at 212. 26 27 1 It appears Brink mischaracterizes the underlying facts in Stubbs-Danielson. Stubbs-Danielson, 539 F.3d at 1174 (noting ALJ “translated Stubbs–Danielson’s condition, including the pace and 28 mental limitations . . . .” (emphasis added)). 1 However, when the ALJ asked the vocational expert whether Brink could perform simple, 2 repetitive work, the ALJ did not mention these limitations in his question, and apparently 3 incorporated the expert’s answer into his findings. See Brink, 343 F. App’x at 212. By contrast, 4 when the ALJ asked “whether a claimant with moderate to marked attention and concentration 5 deficits” would be able to perform the simple, repetitive work identified by the vocational expert, 6 the expert responded in the negative. Id. Ultimately the ALJ concluded Brink could perform 7 “certain light work.” Because the ALJ “accepted that Brink has moderate difficulty with 8 concentration, persistence, or pace,” but “nevertheless concluded, contrary to the vocational 9 expert’s testimony, that Brink can perform certain light work,” the Ninth Circuit found his 10 “conclusion was based on an incomplete hypothetical question, and is not supported by 11 substantial evidence.” Id. 12 That is not the case here; the physician reports in the record support the ALJ’s 13 finding that, despite having “moderate difficulties” with regard to concentration, persistence or 14 pace, plaintiff could still perform “‘simple, routine tasks,’ with occasional interactions with 15 supervisors, co-workers and the public, and no tandem work,” Findings at 4 (quoting 16 Administrative Record (AR), ECF No. 10, at 25). See Def.’s Objs. at 2–3 (citing AR 88–902 17 (“Dalton Report”); AR 104–07 (“Walls Report”)). As did the doctors in Stubbs-Danielson, both 18 Dr. Dalton and Dr. Walls opined that plaintiff could perform simple tasks with infrequent social 19 interactions, despite his moderate limitations caused by mental impairments. See Dalton Report 20 at 85 (noting “moderate” “difficulties in maintaining concentration, persistence or pace” and 21 explaining “moderate limitations in sustained CPP and socialization are possible which likely 22 limit clmt [sic] to simple tasks/work”); id. at 90 (“As outlined, clmt’s [sic] mental capacity 23 appears adequate for simple work. He’s likely to work best in settings with infrequent social or 24 public interactions/demands.”); Walls Report at 101–102, 107 (same). Accordingly, this case is 25 more analogous to Stubbs-Danielson than it is to Brink, because it appears the ALJ did rely on 26 medical evidence when he reached the conclusion that plaintiff’s moderate difficulties in 27 2 Citations to the Administrative Record refer to the internal pagination in the bottom right-hand 28 corner, not the pagination imposed by the CM/ECF system. 1 maintaining concentration, persistence or pace would not prevent him from performing “‘simple, 2 routine tasks,’” with “occasional interactions with supervisors, co-workers and the public, and no 3 tandem work.” Findings at 4 (quoting AR at 25). 4 For these reasons, the findings and recommendations are not adopted, and the 5 matter is referred back to the magistrate judge for further consideration of the parties’ arguments 6 he has not yet addressed, consistent with this order. 7 IT IS SO ORDERED. 8 DATED: September 2, 2020. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28