Rashaad v. Saul ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEMETRIUS R., Case No.: 19cv1126-MMA-MDD 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION ON MOTION AND CROSS MOTION FOR 14 ANDREW M. SAUL, Commissioner SUMMARY JUDGMENT of Social Security, 15 [ECF NOS. 15, 20] Defendant. 16 17 18 Plaintiff Demetrius Rashaad (“Plaintiff”) filed this action pursuant to 19 42 U.S.C. § 405(g) for judicial review of the final administrative decision of 20 the Commissioner of the Social Security Administration (“Commissioner”) 21 denying Plaintiff’s application for Disability Insurance Benefits under Title II 22 of the Social Security Act (“Act”). (AR ).1 23 For the reasons expressed herein, the Court RECOMMENDS the case 24 be REMANDED to the ALJ for further analysis. 25 26 1 “AR” refers to the Certified Administrative Record filed on October 28, 2019. (ECF No. 1 I. BACKGROUND 2 Plaintiff was born in December 1967. (AR 35). At the time the instant 3 application was filed on July 15, 2015, Plaintiff was 47 years-old which 4 categorized him as a younger individual.2 20 C.F.R. § 404.1563, 416.963. 5 A. Procedural History 6 On July 15, 2015, Plaintiff protectively filed an application for a period 7 of disability insurance benefits under Title II of the Social Security Act, 8 alleging a disability beginning June 17, 2014. (AR 27). After his application 9 was denied initially and upon reconsideration, Plaintiff requested an 10 administrative hearing before an administrative law judge (“ALJ”). (Id.). An 11 administrative hearing was held on December 5, 2017. Plaintiff appeared and 12 was represented by attorney Shaneela Marlett. Testimony was taken from 13 Plaintiff and Nelly Katsell a vocational expert (“VE”). (Id.). On May 7, 2018, 14 the ALJ issued a decision denying Plaintiff’s claim for benefits. (AR 55). 15 On June 11, 2018, Plaintiff sought review with the Appeals Council. 16 (AR 6). On April 25, 2019, the Appeals Council denied Plaintiff’s request for 17 review and declared the Administrative Law Judge’s decision to be the final 18 decision of the Commissioner of Social Security in Plaintiff’s case. (AR 1). 19 This timely civil action followed. 20 // 21 // 22 // 23 // 24 // 25 26 2 Since the time of filing his application, Plaintiff has moved into the next age category- 1 II. DISCUSSION 2 A. Legal Standard 3 Sections 405(g) and 1383(c)(3) of the Social Security Act allow 4 unsuccessful applicants to seek judicial review of a final agency decision of 5 the Commissioner. 42 U.S.C. §§ 405(g), 1383(c)(3). The scope of judicial 6 review is limited in that a denial of benefits will not be disturbed if it is 7 supported by substantial evidence and contains no legal error. Id.; see also 8 Batson v. Comm’r Soc. Sec. Admin, 359 F.3d 1190, 1993 (9th Cir. 2004). 9 Substantial evidence means “more than a mere scintilla” but less than a 10 preponderance. Sandqathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “[I]t 11 is such relevant evidence as a reasonable mind might accept as adequate to 12 support a conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 13 (9th Cir. 1995)). The court must consider the record as a whole, weighing 14 both the evidence that supports and detracts from the Commissioner’s 15 conclusions. Desrosiers v. Sec’y of Health & Human Services, 846 F.2d 573, 16 576 (9th Cir. 1988). If the evidence supports more than one rational 17 interpretation, the court must uphold the ALJ’s decision. Batson, 359 F.3d at 18 1193. When the evidence is inconclusive, “questions of credibility and 19 resolution of conflicts in the testimony are functions solely of the Secretary.” 20 Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). 21 Even if a reviewing court finds that substantial evidence supports the 22 ALJ’s conclusions, the court must set aside the decision if the ALJ failed to 23 apply the proper legal standards in weighing the evidence and reaching his or 24 her decision. Batson, 359 F.3d at 1193. Section 405(g) permits a court to 25 enter a judgment affirming, modifying or reversing the Commissioner’s 26 decision. 42 U.S.C. § 405(g). The reviewing court may also remand the 1 B. Summary of the ALJ’s Findings 2 In rendering his decision, the ALJ followed the Commissioner’s five step 3 sequential evaluation process. See C.F.R. § 404.1520. At step one, the ALJ 4 found that Plaintiff had not engaged in substantial gainful activity since 5 June 17, 2014. (AR 29). 6 At step two, the ALJ found that Plaintiff had the following severe 7 impairments: PTSD and possible depressive disorder Not Otherwise 8 Specified. (Id.). 9 At step three, the ALJ found that Plaintiff did not have an impairment 10 or combination of impairments that met or medically equaled one of the 11 impairments listed in the Commissioner’s Listing of Impairments. (AR 30) 12 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 13 404.1525 and 404.1526)). 14 Next, after considering the entire record, the ALJ determined that 15 Plaintiff had the residual functional capacity (“RFC”) to perform a full range 16 of work at all exertional levels with the following non-exertional limitations: 17 [A]void concentrated exposure to unprotected heights, moving and dangerous machinery, and open flames; is able to understand, 18 remember and carry out simple repetitive instructions and tasks; 19 should not work in a setting that includes regular/constant contact with the general public; and should not perform work that includes 20 more than infrequent handling of customer complaints. 21 (AR 31). 22 The ALJ said that his RFC assessment was based on all the evidence 23 and the extent to which Plaintiff’s symptoms are consistent with the objective 24 medical evidence and other evidence (Id.). The ALJ also stated that he 25 considered the opinion evidence in accordance with the requirements of 20 26 C.F.R. 404.1527. (Id.). 1 process. He found Plaintiff was unable to perform his past relevant work. 2 (AR 35). For the purposes of his step five determination, the ALJ accepted 3 the testimony of VE Nelly Katsell. The VE determined that Plaintiff could 4 perform jobs identified by the VE which exist in significant numbers in the 5 national economy. For example, mail carrier (DOT Code 230.367-010); parcel 6 post carrier (DOT No. 372.363-101); protective officer (DOT No. 375.363-010); 7 patrol officer (DOT No. 375-263-014). (AR 35). 8 C. Issue in Dispute 9 The sole issue raised by Plaintiff in this case is that “[t]he ALJ failed to 10 articulate persuasive, specific, valid reasons for rejecting the 100% disability 11 rating from the Department of Veterans Affairs. (ECF 15 at p. 4). According 12 to Plaintiff, the Department of Veterans Affairs (VA) rated Plaintiff’s PTSD 13 disability at 100%. (Id.). Plaintiff’s other impairments were rated as follows: 14 1) hypertensive heart disease 30%; 2) sleep apnea 50%; and, 3) hypertension 15 10%. Plaintiff contends that his “overall disability was rated at 100%.” (Id. at 16 5). 17 Defendant argues “the ALJ considered the examination reports and 18 treatment notes Plaintiff received, including at the VA, and found that they 19 were overall unremarkable and did not support a finding of disability under 20 the Social Security Act. Defendant contends this rationale was ‘persuasive, 21 specific [and] valid.” (ECF 18 at p. 16). 22 The Ninth Circuit has held: 23 “[T]he ALJ must consider the VA’s finding in reaching his decision and the ALJ must ordinarily give great weight to a VA 24 determination of disability” McLeod v. Astrue, 640 F.3d 881, 886 25 (9th Cir. 2011) (internal quotations omitted) (internal citations omitted). We have found great weight to be ordinarily warranted 26 because of the marked similarity between these two federal 1 rating is not conclusive and “does not necessarily compel the SSA to reach an identical result.” McLeod, 640 F.3d at 886. An ALJ may 2 give less weight to a VA rating “if he gives persuasive, specific, valid 3 reasons for doing so that are supported by the record…” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009). 4 5 Luther v. Berryhill, 891 F.3d 872, 876-877 (9th Cir. 2018). 6 In this case, the ALJ opined that “[t]he weight of the objective evidence 7 does not support the claims of the claimant’s disabling limitations to the 8 degree alleged.” (AR 32). For example, the ALJ stated “[i]n contrast to the 9 claims of the claimant’s disability due to PTSD, mental status examinations 10 have been unremarkable other than anxious mood and tense motor activity.” 11 (Id.). “[H]e has had consistently normal memory functioning, average 12 appetite, no sleep disturbance.” (Id.). 13 In reaching his conclusion, the ALJ addressed the medical evidence 14 including: 1) the treatment records prepared by Ms. Jane Benson, LCSW 15 from the San Diego Veterans Center; 2) a consultative psychological 16 examination conducted by Dr. Marcie Goldman, Ph.D.; and 3) a psychological 17 examination conducted by Dr. Cara Zuccarelli Eggars, Ph.D. at the VA as 18 part of a Disability Benefits Questionnaire. Each medical opinion will be 19 addressed. 20 At the S.D. Veterans Center, Plaintiff underwent two mental functional 21 assessments at the Vet Center. The first was in 2013 and the second was in 22 2016. Both assessments were completed primarily by Ms. Benson,3 In both 23 assessments Ms. Benson found Plaintiff had moderate limitations in 24 25 3 Ms. Benson is trained as a LCSW which does not qualify her opinion as an acceptable 26 medical source. 20 C.F.R. §416,902. However, the record shows that Dr. Karen Schoenfeld, Ph.D. is Ms. Benson’s supervisor and signed off on Ms. Benson’s findings. (AR 1 activities of daily living, marked limitation in ability to maintain social 2 functioning, concentration, persistence and pace. (AR 33). Ms. Benson also 3 testified on Plaintiff’s behalf at the Appeals Hearing. (AR 60). According to 4 the ALJ, she testified that the Plaintiff “gets easily overstimulated and then 5 withdraws and isolates.” (AR 33). Ms. Benson also opined that Plaintiff was 6 not able to “handle a job on a regular basis for eight hours per day and 40 7 hours per week” even if limited to “occasional interaction with a supervisor or 8 co-workers.” (Id.). 9 The ALJ gave Ms. Benson’s opinion “negligible weight” because social 10 workers and therapists are not acceptable medical sources and their 11 “diagnoses” are insufficient to establish a medically determinable 12 impairment.” (Id.). The ALJ cited to findings made by Ms. Benson, for 13 example, that Plaintiff’s PTSD was borne out by his loss of interest in 14 activities, self-isolation and withdrawal, difficulty thinking/concentrating. 15 However, the ALJ reiterated that despite these findings, he gave her opinions 16 “little weight.” (Id.). 17 The ALJ also cited to the October 2015 consultative examination 18 Plaintiff underwent with Dr. Marci Goldman, Ph.D. She found Plaintiff to be 19 in the borderline range with respect to memory; PTSD; and a GAF score of 20 54.4 (AR 415). Dr. Goldman also found Plaintiff had moderate restrictions 21 22 4 A GAF score is the clinician’s opinion of a patient’s overall level of functioning. It rates 23 only psychological, social, and occupational functioning, without regard to impairments in 24 functioning due to physical or environmental factors. Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 2000) (“DSM-IV”). A GAF score in the range of 51-60 25 indicates “Moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning.” Id. at 34. 26 The most recent edition of the DSM “dropped” the GAF scale, citing to its “conceptual lack of clarity” and “questionable psychometrics in routine practice.” Diagnostic and Statistical 1 performing simple, constant tasks; understanding and following directions; 2 and sustaining an 8-hour day, 40-hour work week. She further noted 3 Plaintiff had severe restrictions in performing complex tasks and getting 4 along with others (e.g. supervisors/co-workers). Dr. Goldman also found that 5 Plaintiff’s affect was friendly and cooperative, but also depressed, anxious 6 and fearful. Motivation, interest and effort were adequate throughout the 7 assessment. (AR 414). The ALJ gave little weight to Dr. Goldman’s report 8 because she “only saw the claimant on one occasion and placed too much 9 emphasis upon his subjective complaints.” (AR 34). The ALJ also rejected 10 Dr. Goldman’s opinion because she noted Plaintiff had a “depressed mood” 11 which, according to the ALJ is not supported by the record. According to the 12 ALJ, Plaintiff cites to anxiety and PTSD as the source of his disability.5 (Id.). 13 Another medical record specifically cited by the ALJ is a Disability 14 Benefits Questionnaire with the Department of Veteran’s Affairs from 15 November 2015. (AR 536). The excerpts cited were prepared by Dr. Cara 16 Zuccarelli Eggers, Ph.D. Dr. Eggers reported Plaintiff’s symptoms as worse 17 than determined in 2013 “and are currently causing significant impairments 18 in all areas of functioning.” (AR 527). Dr. Eggers also cited a litany of 19 symptoms that “actively” applied to Plaintiff’s diagnosis. For example, 20 depressed mood, anxiety, panic attacks more than once a week, near 21 continuous panic or depression, mild memory loss, flattened affect, difficulty 22 in establishing and maintaining effective work and social relationships, 23 24 25 5 It should be noted that the ALJ did attempt to get a second consultative evaluation, but Plaintiff refused to participate in a second CE. The ALJ stated in his decision “the 26 claimant did not attend the consultative examination and the undersigned was thwarted from obtaining independent verification of the conclusions” in the SD Vet Center 1 difficulty in adapting to stressful circumstances including a work like setting. 2 (AR 535). 3 Notwithstanding, Dr. Eggers’ explicit report, the ALJ “attached no 4 weight to this speculative statement based upon an isolated examination.” 5 (AR 34). The ALJ added that Dr. Eggers “placed too much weight on the 6 claimant’s subjective report on that occasion which was inconsistent” with 7 other statements made by Plaintiff. (Id.). 8 The ALJ also cited to the Department of Veterans Affairs assignment 9 of a 100% disability rating to Plaintiff. The ALJ acknowledged that the law 10 in this circuit requires that VA disability ratings are entitled to great weight. 11 (AR 34) (citing McCartey v. Massanari, 298 F. 3d 1072, 1076 (9th Cir. 2002). 12 However, the ALJ stated that VA disability ratings “are not binding on the 13 Social Security Administration.” (AR 35). “Therefore, the undersigned has 14 not given any weight to the finding of ‘disability’ by the VA in part because 15 the VA based its award, in significant part, on non-severe conditions without 16 requiring the same degree of medical support mandated by the Social 17 Security Administration.” (Id.). 18 Lastly, the ALJ briefly cited to the findings of the state agency mental 19 health consultant. (AR 32). The ALJ noted that “[o]n initial and 20 reconsideration review, the state agency mental health consultant opined 21 that Plaintiff “can perform simple work tasks; can interact with supervisors 22 and co-workers; limited contact with the general public; can adapt to work 23 setting that is not fast paced.” (AR 32-33). The ALJ did not state what 24 weight he assigned to the state agency mental health consultant’s findings. 25 In this case, the ALJ assigned little to no weight to every examining or 26 treating medical opinion cited by him. Even had the ALJ assigned great or 1 non-examining physician “cannot by itself constitute substantial evidence 2 that justifies rejection of the opinion of either an examining or treating 3 physician.” Lester v. Chater, 81 F.3d 821, 831 (9th Cir.1995). Consequently, it 4 is not clear what medical opinion supported the ALJ’s determination of 5 Plaintiff’s residual functional capacity. In fact, no examining physician’s 6 opinion supports the ALJ’s RFC determination. This ambiguity combined 7 with the lack of a supporting testifying medical expert suggests that the 8 ALJ’s RFC assessment is not supported by substantial evidence in the record. 9 It is not apparent to the Court that Plaintiff is or is not disabled 10 without additional findings. The record does not support the ALJ’s decision 11 to accord little or no weight to the findings of the VA and to the opinions of 12 treating and examining physicians absent specific and legitimate reasons 13 supported by substantial evidence. The outstanding issues must be revisited 14 and resolved by the ALJ on review. For these reasons the Court recommends 15 the case be remanded for further administrative action consistent with the 16 findings presented herein. 17 III. RECOMMENDATION 18 This Report and Recommendation of the undersigned Magistrate Judge 19 is submitted to the United States District Judge assigned to this case, 20 pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Local Civil Rule 21 72.1(c) of the United States District Court for the Southern District of 22 California. 23 IT IS HEREBY ORDERED that any written objection to this report 24 must be filed with the court and served on all parties no later than August 25 21, 2019. The document should be captioned “Objections to Report and 26 Recommendations.” 1 filed with the Court and served on all parties no later than August 28, 2019. 9 parties are advised that failure to file objections within the specified time 3 ||may waive the right to raise those objections on appeal of the Court’s order. 4 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 5 IT IS SO ORDERED. Dated: August 5, 2020 +L s | [ Hon. Mitchell D. Dembin 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27