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Craig v. Colvin

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
Mar 15, 2016
NO. CV 15-5866-E (C.D. Cal. Mar. 15, 2016)

Opinion

NO. CV 15-5866-E

03-15-2016

STEVEN S. CRAIG, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied, and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on August 4, 2015, seeking review of the Commissioner's denial of benefits. The parties consented to proceed before a United States Magistrate Judge on September 15, 2015. Plaintiff filed a motion for summary judgment on February 2, 2016. Defendant filed a motion for summary judgment on March 1, 2016. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed August 6, 2015.

BACKGROUND

Plaintiff, a former clerk, operations manager and customer services representative, asserts disability based principally on alleged mental problems (Administrative Record ("A.R.") 27, 53-56, 213, 311). The Administrative Law Judge found Plaintiff suffers from severe mental impairments, including attention deficit disorder, major depression, dysthymia, generalized anxiety disorder and an avoidant personality disorder (A.R. 18). The ALJ found that these impairments limit Plaintiff's functionality in several significant respects (A.R. 18-27). The ALJ stated, inter alia, that "[w]ith regard to concentration, persistence or pace, the claimant has moderate difficulties" (A.R. 19).

The ALJ found that Plaintiff's impairments preclude the performance of any of Plaintiff's past relevant work (A.R. 27). To determine whether there exist any other jobs Plaintiff can perform, the ALJ consulted a vocational expert (A.R. 84-90). The ALJ posed a hypothetical question to the vocational expert which assumed that "[m]entally, this hypothetical individual retains the ability to understand, remember, and carry out short, simple instructions . . . and make judgements [sic] on simple related decisions" (A.R. 84). The hypothetical question did not expressly assume moderate difficulties regarding concentration, persistence or pace. The ALJ relied on the vocational expert's answers to the hypothetical question to identify jobs Plaintiff assertedly can perform (A.R. 28-29). The Appeals Council denied review (A.R. 1-3).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

DISCUSSION

"After a claimant satisfies his initial burden of showing that a physical or mental impairment prevents him from performing his previous work, the burden shifts to the [Administration] to show that the claimant has the capacity to perform other work and that such other work exists in the national economy." Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985). Where, as here, a claimant's non-exertional impairments significantly limit his or her range of work "the grids do not apply, and the testimony of a vocational expert is required to identify specific jobs within the claimant's abilities." Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988); see Tackett v. Apfel, 180 F.3d 1094, 1103 (9th Cir. 1999); Burkhart v. Bowen, 856 F.2d 1335, 1340-41 (9th Cir. 1988).

Where a hypothetical question fails to "set out all of the claimant's impairments," the vocational expert's answers to the question cannot constitute substantial evidence to support the ALJ's decision. See, e.g., DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991); Gamer v. Secretary, 815 F.2d 1275, 1280 (9th Cir. 1987); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984); see also Social Security Ruling 96-8p (in assessing residual functional capacity, the ALJ must consider all limitations imposed by all impairments, even non-severe impairments; "the limitations due to such a 'not severe' single impairment may prevent an individual from performing past relevant work . . ."); 20 C.F.R. § 404.1545(e) ("we will consider the limiting effects of all your impairment(s), even those that are not severe, in determining your residual functional capacity"); accord Carmickle v. Commissioner, 533 F.3d at 1164.

In the present case, it is uncertain whether the hypothetical question on which the ALJ relied included all of Plaintiff's work-related impairments. The ALJ expressly found Plaintiff has moderate limitations in concentration, persistence or pace. The ALJ may have attempted to account for these limitations by referencing an "ability to understand, remember, and carry out short, simple instructions . . . make judgements [sic] on single related decisions" (A.R. 84; emphasis added). In arguing the sufficiency of these references, Defendant appears to rely on Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008) ("Stubbs").

In Stubbs, the Ninth Circuit rejected the claimant's contention that a restriction to "simple, routine, repetitive sedentary work, requiring no interaction with the public" failed to capture certain moderate and mild mental limitations identified by a Dr. McCollum and a Dr. Eather. Id. at 1173-74. The Stubbs Court observed:

Dr. McCollum did not assess whether [the claimant] could perform unskilled work on a sustained basis. Dr. Eather's report did. Dr. Eather's report, which also identified "a slow pace, both in thinking & actions" and several moderate limitations in other mental areas, ultimately concluded [the claimant] retained the ability to "carry out simple tasks. . . ."

The ALJ translated [the claimant's] condition, including the pace and mental limitations, into the only concrete restrictions available to him - Dr. Eather's recommended restriction to "simple tasks" . . . [A]n ALJ's assessment of a claimant adequately captures restrictions related to concentration, persistence, or pace where the assessment is consistent with restrictions identified in the medical testimony. Id.

The present case is distinguishable from Stubbs. In the present case, unlike Stubbs, no doctor opined Plaintiff retains the capacity to perform "simple" work notwithstanding the doctor's imposition of moderate limitations in the relevant mental areas. Defendant appears to argue that Dr. Rosa Colonna did so, but Dr. Colonna characterized Plaintiff's "attention and concentration span" as only "mildly" (not moderately) diminished (A.R. 426). Further, neither Dr. Colonna nor any other doctor stated that Plaintiff has moderate difficulties in maintaining persistence or pace. Courts, including the Ninth Circuit, have recognized that Stubbs does not control where the medical evidence fails to establish that the claimant can perform "simple" work notwithstanding moderate limitations in the relevant areas of mental functioning. See Brink v. Commissioner, 343 Fed. App'x 211, 212 (9th Cir. Aug. 18, 2009); Catalan v. Colvin, 2016 WL 590206, at *7 (C.D. Cal. Feb. 10, 2016); Willard v. Colvin, 2016 WL 237068, at *3 (C.D. Cal. Jan. 20, 2016); Feltis v. Astrue, 2012 WL 2684994, at *4 (E.D. Cal. July 6, 2012); Lim v. Astrue, 2011 WL 3813100, at *7 (E.D. Cal. Aug. 29, 2011); Bentancourt v. Astrue, 2010 WL 4916604, at *3 (C.D. Cal. Nov. 27, 2010).

In view of these authorities, this Court is unable to conclude that substantial evidence supports the proposition that a restriction to "simple" work adequately accounted for the moderate limitations in "concentration, persistence or pace" the ALJ found to exist. The ALJ erred in relying on vocational expert testimony given in response to an incomplete hypothetical question.

The Court is also unable to conclude that the ALJ's errors were harmless. "[A]n ALJ's error is harmless where it is inconsequential to the ultimate nondisability determination." Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and quotations omitted); see Treichler v. Commissioner, 775 F.3d 1090, 1105 (9th Cir. 2014) ("Where, as in this case, an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency"); cf. McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error not harmless where "the reviewing court can determine from the 'circumstances of the case' that further administrative review is needed to determine whether there was prejudice from the error").

The circumstances of this case warrant remand for further administrative proceedings, which could remedy the ALJ's errors. See McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) ("Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits"); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand for further administrative proceedings is the proper remedy "in all but the rarest cases"). /// /// /// /// /// /// ///

CONCLUSION

For all of the foregoing reasons, Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. "[E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled." Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). --------

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: March 15, 2016.

/S/_________

CHARLES F. EICK

UNITED STATES MAGISTRATE JUDGE


Summaries of

Craig v. Colvin

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
Mar 15, 2016
NO. CV 15-5866-E (C.D. Cal. Mar. 15, 2016)
Case details for

Craig v. Colvin

Case Details

Full title:STEVEN S. CRAIG, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of…

Court:UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Date published: Mar 15, 2016

Citations

NO. CV 15-5866-E (C.D. Cal. Mar. 15, 2016)