Gutierrez v. Berryhill ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIO ANGEL GUTIERREZ, Case No. 18-cv-07666-DMR 8 Plaintiff, ORDER ON CROSS MOTIONS FOR 9 v. SUMMARY JUDGMENT 10 NANCY A. BERRYHILL, Re: Dkt. Nos. 26, 27 11 Defendant. 12 Plaintiff Mario Angel Gutierrez moves for summary judgment to reverse the 13 Commissioner of the Social Security Administration’s (the “Commissioner’s”) final 14 administrative decision, which found Gutierrez not disabled and therefore denied his application 15 for benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. [Docket 16 No. 26.] The Commissioner cross-moves to affirm. [Docket No. 27.] For the reasons stated 17 below, the court grants Gutierrez’s motion, denies the Commissioner’s motion, and remands this 18 matter for further proceedings consistent with this opinion. 19 I. BACKGROUND 20 Gutierrez filed an application for Social Security Disability Insurance (“SSDI”) benefits on 21 November 23, 2015, and filed an application for Supplemental Security Income (“SSI”) benefits on April 11, 2016, alleging disability beginning November 14, 2013. Administrative Record 22 (“AR”) 197-198, 199-204. An Administrative Law Judge (“ALJ”) held a hearing and issued an 23 unfavorable decision on September 19, 2017. AR 19-34. The ALJ found that Gutierrez has the 24 following severe impairments: peripheral neuropathy bilateral upper and lower extremities, 25 depression, and anxiety. A.R. 24. The ALJ determined that Gutierrez has the residual functional 26 capacity (“RFC”) 27 to perform less than full range of sedentary work . . . [s]pecifically, occasional balancing, kneeling and crawling, no climbing ladders, 1 frequent handling and fingering, and can perform simple routine tasks with occasional public contact. 2 A.R. 26. 3 Relying on the opinion of a vocational expert (“VE”) who testified that an individual with 4 such an RFC could perform other jobs existing in the economy, including tube operator, addresser, 5 and document preparer, the ALJ concluded that Gutierrez is not disabled. A.R. 33. 6 After the Appeals Council denied review, Gutierrez sought review in this court. [Docket 7 No. 1.] 8 II. ISSUES FOR REVIEW 9 The parties dispute whether the ALJ erred in determining Gutierrez’s RFC. 10 III. STANDARD OF REVIEW 11 Pursuant to 42 U.S.C. § 405(g), the district court has the authority to review a decision by 12 the Commissioner denying a claimant disability benefits. “This court may set aside the 13 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 14 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 15 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 16 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 17 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a mere scintilla, but less than a 18 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir.1996) (internal citation omitted). 19 When performing this analysis, the court must “consider the entire record as a whole and may not 20 affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. 21 Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citation and quotation marks omitted). 22 If the evidence reasonably could support two conclusions, the court “may not substitute its 23 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 24 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “Finally, the court will not reverse an ALJ’s 25 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 26 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 27 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). IV. DISCUSSION 1 Gutierrez argues that the ALJ’s RFC assessment is not supported by substantial evidence, 2 and therefore the VE testimony was based on inaccurate hypotheticals about Gutierrez’s abilities. 3 Specifically, he asserts that even though the ALJ gave “great weight” to the opinions of treating 4 physician Arturo Montano, M.D., and examining physician Jenny Forman, Ph.D., the RFC did not 5 account for certain limitations they assessed. 6 A. Legal Standard 7 In determining a claimant’s RFC at step four of the sequential analysis, an ALJ must 8 consider “all of the relevant medical and other evidence” in the record, 20 C.F.R. §§ 9 404.1545(a)(3), 404.1546(c), and must consider all of the claimant’s “medically determinable 10 impairments,” including those that are not severe. 20 C.F.R. § 404.1545(a)(2); Orn v. Astrue, 495 11 F.3d 625, 630 (9th Cir. 2007). “[A]n RFC that fails to take into account a claimant’s limitations is 12 defective.” Valentine v. Comm’r. of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). 13 B. Analysis 14 1. Dr. Montano’s Opinion 15 Arturo Montano, M.D., of San Francisco General Hospital, completed a Neuropathy and 16 Pain Questionnaire for Gutierrez on May 27, 2017. A.R. 538-540. He noted that he had first 17 examined Gutierrez on April 26, 2016, and had seen him every 6-12 months. A.R. 538. He 18 diagnosed chronic, progressive small fiber neuropathy with symptoms of severe neuropathic pain 19 and allodynia. Dr. Montano opined that Gutierrez can stand/walk for two to four hours, with 20 unlimited sitting. He can occasionally balance, kneel, and crawl, and frequently twist, stoop, 21 crouch/squat, and climb stairs. A.R. 538. According to Dr. Montano, Gutierrez would 22 “potentially require breaks if job duties result in exacerbation of neuropathic pain, such as 23 prolonged standing or frequent/repetitive use of hands,” and such breaks could be “1-2 hours at a 24 time depending on severity of symptoms.” A.R. 538. 25 Dr. Montano opined that Gutierrez has “significant limitations with reaching, handling or 26 fingering.” According to Dr. Montano, Gutierrez can use each hand to grasp, turn, and twist 27 objects for 50% of an eight-hour workday, and perform fine manipulations with his fingers for 1 50% of an eight-hour workday. A.R. 539. He also opined that Gutierrez would likely be absent 2 from work about four days per month as a result of his impairments. A.R. 539. 3 The ALJ stated she accorded “great weight” to the exertional and manipulative limitations 4 assessed by Dr. Montano “because they are generally consistent with the medical record.” 5 However, she found that the record does not support the monthly absences and breaks described 6 by Dr. Montano, noting that “parts of the opinion are vague and speculative—for example, Dr. 7 Montano notes [Gutierrez] ‘may’ need a 1-2 hour break during the day if something causes him 8 pain.” A.R. 32. 9 Gutierrez argues that even though the ALJ gave great weight to Dr. Montano’s “exertional 10 and manipulative limitations,” the RFC did not account for each of those limitations. Specifically, 11 the RFC provides that Gutierrez can perform “frequent handling and fingering.” Social Security 12 rules define “frequent” as “occurring from one-third to two-thirds of the time.” Titles II & XVI: 13 Determining Capability to Do Other Work-the Med.-Vocational Rules of Appendix 2, SSR 83-10, 14 at *6 (S.S.A. 1983). However, Dr. Montano opined that Gutierrez has “significant limitations 15 with reaching, handling or fingering” and limited him to using his hands for grasping, turning, and 16 twisting and his fingers for fine manipulations for only 50% of an eight-hour workday. A.R. 539. 17 Accordingly, Gutierrez’s RFC for “frequent handling and fingering” is inconsistent with Dr. 18 Montano’s assessed limitations, because a job involving “frequent handling and fingering” could 19 require handling and fingering for up to two-thirds of the time, which is more than 50% of an 20 eight-hour workday. The ALJ thus erred by failing to incorporate the specific exertional and 21 manipulative limitations assessed by Dr. Montano. See Valentine, 574 F.3d at 690 (“[A]n RFC 22 that fails to take into account a claimant’s limitations is defective.”); see also Goytia v. Berryhill, 23 No. 14-cv-04498-EJD, 2017 WL 1150524, at *6 (N.D. Cal. Mar. 28, 2017) (“Having accepted [a 24 medical source’s] assessment of Plaintiff’s moderate limitations, the ALJ was required to 25 incorporate those limitations into an RFC at step four of the sequential analysis.”). Further, the 26 testimony offered by the VE is defective because it relied on an inaccurate RFC. Matthews v. 27 Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (“If a vocational expert’s hypothetical does not reflect 1 finding that the claimant can perform jobs in the national economy.”). 2 The Commissioner does not argue that the assessed RFC for “frequent handling and 3 fingering” is consistent with Dr. Montano’s assessment. Instead, she argues that the ALJ did not 4 adopt Dr. Montano’s opinion and thus was not required to incorporate all of Dr. Montano’s 5 limitations into the RFC and cites to record evidence that she claims supports the ALJ’s decision 6 to discount that portion of his opinion. Def.’s Mot. 5-6. 7 While an ALJ is not required to adopt all of an examining or treating physician’s 8 assessment, Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989), an ALJ is required to 9 explain the reasons for rejecting those portions of an examining or treating physician’s assessment 10 that the ALJ chooses not to adopt. Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 11 2007). By not incorporating Dr. Montano’s limitations on handling and fingering into the RFC, 12 the ALJ implicitly rejected that portion of his opinion, even though she expressly “accord[ed] 13 great weight to the exertional and manipulative limitations” assessed by Dr. Montano without 14 qualification. A.R. 32. The ALJ thus erred with respect to Dr. Montano’s assessed limitations on 15 handling and fingering, for “[t]he opinion of an examining doctor, even if contradicted by another 16 doctor, can only be rejected for specific and legitimate reasons that are supported by substantial 17 evidence in the record.” Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995) (citing Andrews v. 18 Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)). Given the requirements governing the treatment of 19 an examining physician’s opinions, the ALJ should have made a determination about whether Dr. 20 Montano’s opinions regarding Gutierrez’s impaired ability to handle and finger were contradicted 21 or supported by any other doctor. Her failure to do so was legal error, as was her failure to explain 22 why she rejected those opinions. 23 2. Dr. Forman’s Opinion 24 Jenny Forman, Ph.D., evaluated Gutierrez on October 16, 2015. A.R. 323-326. She 25 interviewed Gutierrez and performed a mental status examination. A.R. 323-324. Gutierrez’s 26 cognition, attention/concentration, insight, and abstraction were fair. He was fully oriented with a 27 calm mood and affect and logical, linear thought process. Dr. Forman diagnosed amphetamine 1 schizoaffective disorder. A.R. 324. 2 Based on the mental status examination and clinical interview, Dr. Forman opined that 3 Gutierrez’s ability to follow simple instructions and to maintain adequate pace or persistence to 4 perform one or two step simple repetitive tasks is unimpaired. She opined that he is mildly to 5 moderately impaired in the abilities to follow complex/detailed instructions, perform complex 6 tasks, withstand the stress of an eight-hour workday, interact appropriately with others, and adapt 7 to changes, hazards, or stressors in the workplace. In response to the question, “How many hours 8 a day able to work?,” Dr. Forman wrote, “4-8 (simple tasks, low stress).” A.R. 325. 9 The ALJ summarized Dr. Forman’s opinion, and specifically included the assessment that 10 Gutierrez “can work 4-8 hours per day at simple tasks, low stress.” The ALJ stated she accorded 11 “great weight” to Dr. Forman’s opinion “because it is supported by cognitive exam and consistent 12 with lack of mental health treatment and substance use.” A.R. 31. In relevant part, the ALJ 13 concluded that Gutierrez possesses the RFC to “perform simple routine tasks with occasional 14 public contact.” 15 Gutierrez argues that the ALJ erred in assessing an RFC that “is not entirely consistent” 16 with Dr. Forman’s opinion that Gutierrez is able to do “simple tasks, low stress” for 4-8 hours per 17 day, because the RFC omits the 4-8 hours per day limitation. He further notes that the ALJ did not 18 include that limitation in any of the hypotheticals to the VE. Pl.’s Mot. 8. 19 In response, the Commissioner argues that the RFC “is generally consistent” with Dr. 20 Forman’s limitation because she opined that Gutierrez could work up to eight hours per day, 21 noting that an RFC is the most a claimant can do despite his or her limitations. Def.’s Mot. 6. She 22 also argues that the ALJ did not adopt Dr. Forman’s opinion and thus was not required to 23 incorporate all of Dr. Forman’s limitations into the RFC. Id. 24 The court concludes that the ALJ erred with respect to Dr. Forman’s opinion and the 25 resulting assessment of the relevant portion of Gutierrez’s RFC. This is because Dr. Forman’s 26 opinion that Gutierrez is able to work 4-8 hours per day is ambiguous. It is possible that Dr. 27 Forman meant that Gutierrez could regularly work up to 8 hours per day. If so, the RFC would be 1 mean that Gutierrez could only occasionally work up to 8 hours per day; such an interpretation 2 || would be inconsistent with the RFC. The ALJ did not resolve or even identify the ambiguity. 3 || Instead, she specifically noted that portion of Dr. Forman’s opinion and did not offer reasons to 4 || reject or discount it, and therefore appears to have accepted it. The ALJ erred by failing to resolve 5 || the ambiguity in Forman’s opinion. The ALJ has the duty to “conduct an appropriate inquiry” if 6 || the evidence is ambiguous or inadequate to permit a proper evaluation of a claimant’s 7 impairments. Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). If evidence from a medical 8 source is insufficient to determine if the claimant is disabled, an ALJ may be required to re-contact 9 the medical source to seek additional evidence or clarification. See 20 C.F.R. §§ 404.1520b(b), 10 || 416.920b(b); see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (“[t]he ALJ’s duty to 11 supplement a claimant’s record is triggered by ambiguous evidence [or] the ALJ’s own finding 12 || that the record is inadequate”). Here, the court cannot say that the ALJ discharged this duty with 13 respect to Dr. Forman’s opinion. See Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) 14 || (‘The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and 3 15 || resolving ambiguities.”). As a result, the relevant portion of the RFC is not supported by a 16 || substantial evidence. 2 17 |) Vv. CONCLUSION Z 18 For the foregoing reasons, Gutierrez’s motion for summary judgment is granted and the 19 Commissioner’s motion is denied. This matter is remanded for reconsideration of the Step Four 20 analysis in a manner that is consistent with this opinion. 3 DIS TRIS 21 Ko £0 S 22 IT IS SO ORDERED. ky 23 || Dated: March 2, 2020 > SSN 24 = a) fh — en A 26 : □ 08 DISTRICS