# David N. Kent v. Nancy A. Berryhill

> District Court, C.D. California · October 11, 2019

URL: https://www.frixlaw.com/law-library/cases/10035790

## Case

- **Court:** District Court, C.D. California
- **Decided:** October 11, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10035790

## How later opinions describe it (automated extraction)

- holding that 26 || where outstanding issues remain, crediting evidence as true is improper, because 27 || “this reverses the required order of analysis”
- stating that remand for an 8 || award of benefits is inappropriate where “there is conflicting evidence, and not all 9 || essential factual issues have been resolved”

## Opinion text

1
FILED
| ormcualitincrcamr |
3 OCT 1 | 2019
4 ree IRERICT OF CALIFORNIA
DEPUTY
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11] DAVIDK.,! Case No. 8:18-cv-01287-MAA
Plaintiff,
13 MEMORANDUM DECISION AND
V. ORDER REVERSING DECISION OF
14 THE COMMISSIONER AND
REMANDING FOR FURTHER

Commissioner of Social Security,
Defendant.

18 On July 25, 2018, Plaintiff filed a Complaint seeking review of the
19 || Commissioner’s final decision denying his applications for Disability Insurance
20 || Benefits and Supplemental Security Income pursuant to Titles II and XVI of the
21 || Social Security Act. This matter is fully briefed and ready for decision. For the
22 || reasons discussed below, the Commissioner’s final decision is reversed, and this
23 || matter is remanded for further administrative proceedings.
24 | ——_
' Plaintiff's name is Partially redacted in accordance with Federal Rule of Civil
25 || Procedure ete )ien ) and the recommendation of the Committee on Court
os and Case Management of the Judicial Conference of the United
tates.
27 | 2? The Commissioner of Social Security is substituted as the Defendant pursuant to
38 Federal Rule of Civil Procedure 25(d).

1 ADMINISTRATIVE BACKGROUND
2 On January 12, 2015, Plaintiff filed an application for Disability Insurance
3 || Benefits, and on January 30, 2015, he filed an application for Supplemental
4 || Security Income. (Administrative Record [AR] 15, 92, 93.) In both applications,
5 || Plaintiff alleged disability beginning on January 1, 2007, due to major depression,
6 || sleep apnea, and chronic pain. (AR 52, 72.)
7 After his applications were denied initially and upon reconsideration,
8 || Plaintiff requested an administrative hearing before an Administrative Law Judge
9 || (““ALJ’). (AR 15, 150-51.) At a hearing held on May 24, 2017, at which Plaintiff
10 || appeared with counsel, the assigned ALJ heard testimony from Plaintiff and a
11 || vocational expert. (AR 30-51.)
12 In a decision issued on August 4, 2017, the ALJ denied Plaintiffs claim after
13 || making the following findings pursuant to the Commissioner’s five-step evaluation.
14 || (AR 15-24.) Plaintiff had not engaged in substantial gainful activity since his
15 || alleged onset date of January 1, 2007. (AR 17.) He had severe impairments
16 || consisting of “major depressive disorder; generalized anxiety disorder; sleep apnea;
17 || history of piriformis release with residual neuroma and low back pain.” (/d.) He
18 || did not have an impairment or combination of impairments that met or medically
19 || equaled the requirements of one of the impairments from the Commissioner’s
20 || Listing of Impairments. (AR 18.) He had a residual functional capacity to perform
21 |) “medium unskilled work.” (AR 20.) Based on this residual functional capacity,
22 || Plaintiff could not perform his past relevant work as a ride operator. (AR 23.)
23 || However, Plaintiff could perform other work in the national economy. (AR 23.) In
24 |) so concluding, the ALJ did not adopt the vocational expert’s testimony, but instead
25 || relied on Rules 203.14, 203.21, and 203.28 of the Medical-Vocational Guidelines.
26 || (AR 24.) Accordingly, the ALJ concluded that Plaintiff was not disabled as defined
27 || by the Social Security Act. (/d.)
28 || ///

1 On June 9, 2018, the Appeals Council denied Plaintiffs request for review.
2 || (AR 1-6.) Thus, the ALJ’s decision became the final decision of the
3 |} Commissioner.
4
5 DISPUTED ISSUES
6 The parties raise three disputed issues:
7 l. “Whether the ALJ conducted a proper residual functional capacity
8 || assessment.”
9 Ze “Whether the ALJ properly considered the treating physician’s
10 || opinion.”
i, Si “Whether the ALJ properly considered the State agency medical
12 || consultants’ opinions.”
13 || (ECF No. 23, Parties’ Joint Stipulation [“Joint Stip.”] at 2-3.)
14
STANDARD OF REVIEW
16 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s final
17 || decision to determine whether the Commissioner’s findings are supported by
18 || substantial evidence and whether the proper legal standards were applied. See
19 || Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.
20 || 2014). Substantial evidence means “more than a mere scintilla” but less than a
21 || preponderance. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter
22 || v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Substantial evidence is “such
23 || relevant evidence as a reasonable mind might accept as adequate to support a
24 || conclusion.” Richardson, 402 U.S. at 401. The Court must review the record as a
25 || whole, weighing both the evidence that supports and the evidence that detracts from
26 || the Commissioner’s conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is
27 || susceptible of more than one rational interpretation, the Commissioner’s
28

1 || interpretation must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.
2 | 2007).
3
4 DISCUSSION
5 For the reasons discussed below, reversal and remand for further
6 || administrative proceedings are warranted for Issue Two, based on the ALJ’s
7 || assessment of the treating physician’s opinion. Having found that remand is
8 || warranted, the Court declines to address Plaintiff's remaining arguments. See Hiler
9 || v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the
10 || ALJ for the reasons stated, we decline to reach [plaintiff's] alternative ground for
11 |} remand.”); see also Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147,
12 | 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not address the other claims plaintiff
13 |} raises, none of which would provide plaintiff with any further relief than granted,
14 || and all of which can be addressed on remand.”).
15
16 || A. ‘Treating Physician’s Opinion (Issue Two).
17 1. Legal Standard.
18 Disputed Issue Two involves the ALJ’s assessment of the opinion of Dr.
19 || Ciprian, Plaintiffs treating psychiatrist. (Joint Stip. at 10-15.)
20 A treating physician’s opinion is entitled to special weight because he or she
21 || is “most able to provide a detailed, longitudinal picture” of a claimant’s medical
22 || impairments and bring a perspective to the medical evidence that cannot be
23 || obtained from objective medical findings alone. See 20 C.F.R. §§ 404.1527(c)(2),
24 || 416.927(c)(2); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). “The
25 || treating physician’s opinion is not, however, necessarily conclusive as to either a
26 || physical condition or the ultimate issue of disability.” Magallanes v. Bowen, 881
27 || F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician’s opinion
28 ///

1 || depends on whether it is supported by sufficient medical data and is consistent with
2 || other evidence in the record. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
3 If the treating physician’s opinion is uncontroverted by another doctor’s
4 || opinion, it may be rejected only for “clear and convincing” reasons. See Lester v.
5 || Chater, 81 F.3d 821, 830 (9th Cir. 1996). Ifa treating physician’s opinion is
6 || controverted, it may be rejected only if the ALJ makes findings setting forth
7 || specific and legitimate reasons that are based on the substantial evidence of record.
8 || See id. “The ALJ can meet this burden by setting out a detailed and thorough
9 |} summary of the facts and conflicting clinical evidence, stating his interpretation
10 || thereof, and making findings.” Magallanes, 881 F.2d at 751 (quoting Cotton v.
11 || Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)).
12 Here, Dr. Ciprian’s opinion was inconsistent with the opinions of two state
13 || agency review physicians (AR 61, 109) and an examining physician (AR 914).
14 || Thus, the ALJ was required to state specific and legitimate reasons based on
15 || substantial evidence in the record before rejecting Dr. Ciprian’s opinion.
16
17 2: Background.
18 Dr. Ciprian was Plaintiff's treating psychiatrist from January 2015 to
19 || February 2016. (AR 886, 1038). In June 2015, Dr. Ciprian issued a five-page
20 || narrative opinion about Plaintiff's major depressive disorder. (AR 902-06.) In that
21 || opinion, Dr. Ciprian explained Plaintiffs level of functioning in four areas. (AR
22 || 904-05.)
23 First, in the area of “present daily activities,” Dr. Ciprian stated that Plaintiff
24 || can take the bus, drive to appointments, and prepare some meals, but when he is
25 || depressed, he would not have the energy to care for himself and would stay in bed
26 || for most of the time. (AR 904.) Second, in the area of “social functioning,” Dr.
27 || Ciprian stated that Plaintiff isolates himself and minimizes social contact with
28 || others, that his last job was at Disneyland several years ago, and that he has no

1 |) primary support and cannot obtain any employment. (AR 905.) Third, in the area
2 || of “concentration and task completion,” Dr. Ciprian wrote that Plaintiff is able to
3 || follow instructions and complete his tasks, but due to a depressed mood, anxiety,
4 || low motivation, and hopelessness, Plaintiff would not be able to keep up with his
5 || regular routine. (/d.) Fourth, in the area of “adaptation to work or work-like
6 || situations,” Dr. Ciprian wrote that Plaintiff keeps things to himself and does not
7 || speak up but chooses to be silent at all times, and furthermore that he manages his
8 || stress poorly, often leading to suicidal ideation. (/d.)
9 The ALJ addressed Dr. Ciprian’s assessment of the second area, social
10 || functioning. (AR 22.) The ALJ found that Plaintiff's “observed interactions with
11 || others and the lack of observed problems in these interactions shows he is only
12 || slightly limited in this area on a sustained basis. As such, there is no included
13 || social interaction restrictions in [Plaintiffs] residual functional capacity.” (Ud.) As
14 || support, the ALJ referred to evidence that Plaintiff had a close friend who
15 || completed a third-party function report on his behalf, that the friend sees and
16 || interacts with Plaintiff frequently, that Plaintiff was able to interact with the
17 || numerous medical professionals he encountered, and that he had no history of
18 || disciplinary action during an earlier incarceration for a probation violation. (/d.
19 || [citing AR 19].) Thus, the ALJ afforded “less weight” to Dr. Ciprian’s opinion.
20 || (AR 22.
21 | ///
22 || ///
23 ///
24
> The ALJ used this same reason exclusively to discount the opinions of an
25 ae psychiatrist and two state agency physicians. (AR 22.)
__ Although the Commissioner interprets the ALJ’s decision preaaly to posit
26 || additional reasons to discount the treating peyeniamns s pas (Joint Stip. at 13-
14), the Court’s review is limited to the sole reason the ALJ actualy asserted, based
27 | on Plaintiff's level of social functioning. See Connett v. Barnhart, 340 F.3d 871
874 (9th Cir. 2003) (“We are constrained to review the reasons the ALJ asserts.”)
28 |! (citations omitted).

1 3. Analysis.
2 An ALJ may reject a treating physician’s opinion about a claimant’s mental
3 |] illness when it is inconsistent with the claimant’s level of social activity. See
4 | Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (citing Morgan v. Comm’r
5 || of Soc. Sec. Admin., 169 F.3d 595, 600-02 (9th Cir. 1999)). Here, Dr. Ciprian’s
6 || opinion about Plaintiff's social functioning was inconsistent with the evidence the
7 || ALJ cited, particularly the third-party function report submitted by Plaintiff's
8 || friend. (AR 272-80.) According to that report, Plaintiff spends time with others,
9 || helps others by “carrying heavy things” for them, attends church regularly, visits
10 || the friend’s home regularly, and goes out “a couple of times per week.” (AR 276.)
11 || And as the ALJ further noted, the record did not suggest that Plaintiff had problems
12 || in social functioning when he interacted with numerous medical professionals or
13 || when he was incarcerated for a probation violation. Based on this evidence, the
14 || ALJ stated a specific and legitimate reason to discount Dr. Ciprian’s statement that
15 || Plaintiffs social functioning consists of isolating himself and minimizing social
16 || contact with others. (AR 905.)
17 However, despite the validity of this reason, Plaintiff contends that the ALJ’s
18 || assessment was incomplete because it did not address other parts of Dr. Ciprian’s
19 || opinion. (Joint Stip. at 11-12.) Specifically, the ALJ did not address Dr. Ciprian’s
20 || opinion about Plaintiff's ability to function in the other areas of mental functioning,
21 || particularly in the areas of “concentration and task completion” and “adaptation to
22 || work or work-like situations.” (/d.; see also AR 905.) In those areas, Dr. Ciprian
23 || wrote that Plaintiff “would not be able to keep up with his regular routine” and that
24 || Plaintiffs inability to manage stress will “often lead to suicidal ideation.” (AR
25 |) 905.) The Commissioner did not counter this part of Plaintiff's argument in
26 || challenging the ALJ’s assessment. (Joint Stip. at 12-15.)
27 An ALJ’s analysis of a treating physician’s opinion, even one that is
28 || contradicted by other opinions, must be “detailed and thorough.” See Magallanes,

1 || 881 F.2d at 751. It follows that an ALJ’s partial discussion of medical opinions,
2 || particularly a discussion that focuses on one symptom at the exclusion of others, is
3 || insufficient. See Erickson v. Shalala, 9 F.3d 813, 817-18 (9th Cir. 1993) (holding
4 || that, in a case involving a claimant with a pulmonary disease, an ALJ erred by
5 || focusing on the claimant’s breathing ability without considering the “condition as a
6 || whole” and “other symptoms” such as exhaustion or dizzy spells, because an ALJ
7 || “must consider all factors that might have a significant impact on an individual's
8 || ability to work.”) (emphasis in original) (citation and internal quotation marks
9 || omitted).
10 Here, the ALJ’s focus on Plaintiff's social functioning was not responsive to
11 | Dr. Ciprian’s findings that Plaintiff had other mental symptoms consisting of
12 || deficits in “concentration and task completion” and “adaptation to work or work-
13 || like situations.” (AR 905.) In those areas, Dr. Ciprian reported findings that were
14 || independent of social functioning, i.e., that Plaintiff's depressive symptoms
15 || prevented him from keeping up with his regular routine and that he managed his
16 || stress poorly so as to avoid suicidal ideation. Ud.) Thus, even if the ALJ properly
17 || rejected Dr. Ciprian’s statement regarding Plaintiffs social functioning, the
18 || analysis was incomplete because it was not responsive to other parts of Dr.
19 || Ciprian’s opinion stating that Plaintiff had other mental symptoms precluding the
20 || completion of a normal workweek.
21 In sum, because the discussion of Dr. Ciprian’s opinion was incomplete, it
22 || was not based on specific and legitimate reasons. See Erickson, 9 F.3d at 817; see
23 || also Orn, 495 F.3d at 634-35 (holding that an ALJ failed to provide specific and
24 |) legitimate reasons by focusing on the claimant’s range of motion and neurological
25 || deficits, which was not responsive to the treating physician’s opinion that the
26 || claimant could not work because of respiratory symptoms, and stating that “an ALJ
27 || must evaluate the physician’s assessment using the grounds on which it is based”);
28 || Cargill v. Berryhill, 762 F. App’x 407, 410 (9th Cir. 2019) (holding that an ALJ

1 || erred by stating reasons to reject a treating physician’s opinion that went to non-
2 || exertional limitations and therefore were non-responsive to the physician’s opinion
3 |) regarding the claimant’s physical limitations in sitting and the need to elevate his
4 |) legs); Burns v. Berryhill, 731 F. App’x 609, 611 (9th Cir. 2018) (holding that an
5 || ALJ’s rejection of a treating physician’s opinion because of the claimant’s
6 || improvement in cognitive functioning failed to address the treating physician’s
7 || discussion of the claimant’s disabling headaches); Hostrawser v. Astrue, 364 F.
8 || App’x 373, 376 (9th Cir. 2010) (holding that an ALJ failed to set forth specific and
9 || legitimate reasons by focusing unduly on the claimant’s leg pain while ignoring his
10 || back pain). Thus, reversal is warranted.
11
12 | B. Remand for further administrative proceedings.
13 Ninth Circuit case law “precludes a district court from remanding a case for
14 |} an award of benefits unless certain prerequisites are met.” Dominguez v. Colvin,
15 || 808 F.3d 403, 407 (9th Cir. 2015) (citations omitted). “The district court must first
16 || determine that the ALJ made a legal error, such as failing to provide legally
17 || sufficient reasons for rejecting evidence.” Jd. “If the court finds such an error, it
18 || must next review the record as a whole and determine whether it is fully developed,
19 || is free from conflicts and ambiguities, and all essential factual issues have been
20 || resolved.” Jd. (citation and internal quotation marks omitted).
ai Although the Court has found legal error in the assessment of the treating
22 || psychiatrist’s opinion, the record on the whole is not fully developed, and essential
23 || factual issues remain outstanding. Thus, although Plaintiff requests that the treating
24 || psychiatrist’s opinion be credited as true (Joint Stip. at 12), such a step is improper
25 || here. See Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017) (holding that
26 || where outstanding issues remain, crediting evidence as true is improper, because
27 || “this reverses the required order of analysis”) (quoting Dominguez, 808 F.3d at
28 || 409); see also Burns, 731 F. App’x at 612 (holding that where the ALJ’s analysis

1 || was not responsive to the treating physician’s opinion, the ALJ was not required to
2 || credit the opinion as true, but rather the ALJ may reconsider the treating
3 || physician’s opinion together with any other evidence). In sum, the record raises
4 || factual conflicts about Plaintiff's level of functioning that “should be resolved
5 || through further proceedings on an open record before a proper disability
6 || determination can be made by the ALJ in the first instance.” See Brown-Hunter,
7 || 806 F.3d at 496; see also Treichler, 775 F.3d at 1101 (stating that remand for an
8 || award of benefits is inappropriate where “there is conflicting evidence, and not all
9 || essential factual issues have been resolved”) (citation omitted); Strauss v.
10 || Commissioner of the Social Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011)
11 || (same where the existing record does not clearly demonstrate that the claimant is
12 || disabled within the meaning of the Social Security Act).
13 Therefore, based on its review and consideration of the entire record, the
14 || Court has concluded on balance that a remand for further administrative
15 || proceedings pursuant to sentence four of 42 U.S.C. § 405(g) is warranted here. It is
16 || not the Court’s intent to limit the scope of the remand.
17
18 ORDER
19 It is ordered that Judgment be entered reversing the decision of the
20 || Commissioner of Social Security and remanding this matter for further
21 || administrative proceedings.
22
23 || DATED: October [| , 2019
yt”
MARIA Ay RO
UNITED: TES MAGISTRATE JUDGE
27
28
10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10035790. Public record. Not legal advice.