Vincent Larry Petro v. Andrew Saul

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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VINCENT L.P.,1 Case No. 2:20-cv-05716-JC

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Plaintiff,

12 MEMORANDUM OPINION AND

v. ORDER OF REMAND

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14 ANDREW SAUL, Commissioner of

Social Security Administration,

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Defendant.

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17 I. SUMMARY

18 On June 26, 2020, plaintiff filed a Complaint seeking review of the

19 Commissioner of Social Security’s denial of his application for benefits. The

20 parties have consented to proceed before the undersigned United States Magistrate

21 Judge.

22 This matter is before the Court on the parties’ cross-motions for summary

23 judgment (respectively, “Plaintiff’s Motion” and “Defendant’s Motion”). The

24 Court has taken the parties’ arguments under submission without oral argument.

25 See Fed. R. Civ. P. 78; L.R. 7-15; Case Management Order ¶ 5.

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27 1Plaintiff’s name is partially redacted to protect his privacy in compliance with Federal

Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court

28 Administration and Case Management of the Judicial Conference of the United States.

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1 Based on the record as a whole and the applicable law, the decision of the

2 Commissioner is REVERSED AND REMANDED for further proceedings

3 consistent with this Memorandum Opinion and Order of Remand.

4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE

5 DECISION

6 On January 24, 2017, plaintiff protectively filed an application for

7 Supplemental Security Income, alleging disability beginning on January 9, 1995,

8 due to bipolar disorder, schizophrenia, depression, chest pain, and high blood

9 pressure. (See Administrative Record (“AR”) 20, 176-77, 189, 194). An

10 Administrative Law Judge (“ALJ”) subsequently examined the medical record and,

11 on March 14, 2019, heard testimony from plaintiff (who was represented by

12 counsel) and a vocational expert. (AR 33-60). On April 11, 2019, the ALJ

13 determined that plaintiff has not been disabled since January 24, 2017, the

14 application date. (AR 20-29). Specifically, the ALJ found: (1) plaintiff has the

15 following severe impairments: major depressive disorder, recurrent, severe,

16 without psychotic features; and schizophrenia, paranoid vs. bipolar disorder (AR

17 23); (2) plaintiff’s impairments, considered individually or in combination, do not

18 meet or medically equal a listed impairment (AR 24); (3) plaintiff retains the

19 residual functional capacity2 to perform a full range of work with certain

20 nonexertional limitations (AR 31); (4) plaintiff has no past relevant work (AR 27);

21 (5) plaintiff is capable of performing other jobs that exist in significant numbers in

22 the national economy, specifically “linen room attendant,” “hand packager,”

23 “cleaner II,” “routing clerk,” “advertising material distributor,” and

24 “subassembler” (AR 28); and (6) plaintiff’s statements regarding the intensity,

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2Residual functional capacity is what a claimant can still do despite existing exertional

28 and nonexertional limitations. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).

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1 persistence, and limiting effects of subjective symptoms were inconsistent with the

2 medical evidence and other evidence in the record (AR 26).

3 On April 22, 2020, the Appeals Council denied plaintiff’s application for

4 review of the ALJ’s decision. (AR 1-3).

5 III. APPLICABLE LEGAL STANDARDS

6 A. Administrative Evaluation of Disability Claims

7 To qualify for disability benefits, a claimant must show that he is unable “to

8 engage in any substantial gainful activity by reason of any medically determinable

9 physical or mental impairment which can be expected to result in death or which

10 has lasted or can be expected to last for a continuous period of not less than 12

11 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 42

12 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted), superseded by

13 regulation on other grounds; 20 C.F.R. §§ 404.1505(a), 416.905. To be considered

14 disabled, a claimant must have an impairment of such severity that he is incapable

15 of performing work the claimant previously performed (“past relevant work”) as

16 well as any other “work which exists in the national economy.” Tackett v. Apfel,

17 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)).

18 To assess whether a claimant is disabled, an ALJ is required to use the five-

19 step sequential evaluation process set forth in Social Security regulations. See

20 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)

21 (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520,

22 416.920). The claimant has the burden of proof at steps one through four – i.e.,

23 determination of whether the claimant was engaging in substantial gainful activity

24 (step 1), has a sufficiently severe impairment (step 2), has an impairment or

25 combination of impairments that meets or medically equals one of the conditions

26 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and

27 retains the residual functional capacity to perform past relevant work (step 4).

28 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The

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1 || Commissioner has the burden of proof at step five — i.e., establishing that the

2 || claimant could perform other work in the national economy. Id.

3 B. __ Federal Court Review of Social Security Disability Decisions

4 A federal court may set aside a denial of benefits only when the

5 || Commissioner’s “final decision” was “based on legal error or not supported by

6 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871

7 || F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The standard

8 || of review in disability cases is “highly deferential.” Rounds v. Comm’r of Soc.

9 || Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation marks

10 || omitted). Thus, an ALJ’s decision must be upheld if the evidence could reasonably

11 || support either affirming or reversing the decision. Trevizo, 871 F.3d at 674-75

12 | (citations omitted). Even when an ALJ’s decision contains error, it must be

13 || affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec. Admin.,

14 | 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to

15 | the ultimate nondisability determination; or (2) ALJ’s path may reasonably be

16 || discerned despite the error) (citation and quotation marks omitted).

17 Substantial evidence is “such relevant evidence as a reasonable mind might

18 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining

19 |] “substantial evidence” as “more than a mere scintilla, but less than a

20 || preponderance’) (citation and quotation marks omitted). When determining

21 || whether substantial evidence supports an ALJ’s finding, a court “must consider the

22 || entire record as a whole, weighing both the evidence that supports and the evidence

23 || that detracts from the Commissioner’s conclusion[.]|’ Garrison v. Colvin, 759 F.3d

24 || 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).

25 Federal courts review only the reasoning the ALJ provided, and may not

26 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”

27 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need

28 || not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s

1 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,

2 || 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).

3 A reviewing court may not conclude that an error was harmless based on

4 || independent findings gleaned from the administrative record. Brown-Hunter, 806

5 || F.3d at 492 (citations omitted). When a reviewing court cannot confidently

6 || conclude that an error was harmless, a remand for additional investigation or

7 || explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173

8 || (9th Cir. 2015) (citations omitted).

9] IV. DISCUSSION

10 Plaintiff claims that the ALJ erred in rejecting the opinion of examining

11 || physician Dr. Reynaldo Abejuela, M.D. (Plaintiff's Motion at 7-14). For the

12 || reasons stated below, the Court finds that the ALJ erred on this basis. Since the

13 | Court cannot find that the error was harmless, a remand is warranted.

14 A. Pertinent Law

15 In Social Security cases, the amount of weight given to medical opinions

16 || generally varies depending on the type of medical professional who provided the

17 || opinions, namely “treating physicians,” “examining physicians,” and

18 || “nonexamining physicians.” 20 C.F.R. §§ 404.1527(c)(1)-(2) & (e), 404.1502,

19 | 404.1513(a); 20 C.F.R. §§ 416.927(c)(1)-(2) & (e), 416.902, 416.913(a); Garrison,

20 || 759 F.3d at 1012 (citation and quotation marks omitted). A treating physician’s

21 || opinion is generally given the most weight, and may be “controlling” if it is “well-

22 || supported by medically acceptable clinical and laboratory diagnostic techniques

23 || and is not inconsistent with the other substantial evidence in [the claimant’s] case

24 |] record[.]” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Revels v. Berryhill, 874

25 || F.3d 648, 654 (9th Cir. 2017) (citation omitted). In turn, an examining, but non-

26 || treating physician’s opinion is generally entitled to less weight than a treating

27 || physician’s, but more weight than a nonexamining physician’s opinion. Garrison,

28 || 759 F.3d at 1012 (citation omitted).

1 An ALJ may provide “substantial evidence” for rejecting a medical opinion

2 by “setting out a detailed and thorough summary of the facts and conflicting

3 clinical evidence, stating his interpretation thereof, and making findings.”

4 Garrison, 759 F.3d at 1012 (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.

5 1998)) (quotation marks omitted). An ALJ must provide more than mere

6 “conclusions” or “broad and vague” reasons for rejecting a treating or examining

7 doctor’s opinion. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989)

8 (citation omitted). “[The ALJ] must set forth his own interpretations and explain

9 why they, rather than the [doctor’s], are correct.” Embrey v. Bowen, 849 F.2d 418,

10 421-22 (9th Cir. 1988).

11 B. Medical Opinions

12 Dr. Reynaldo Abejuela, M.D., performed a consultative psychiatric

13 examination on April 25, 2017. (AR 271-78). A mental status exam revealed that

14 plaintiff was emotionally unstable, easily distracted, and unable to focus. (AR

15 274). Dr. Abejuela observed poor eye contact, psychomotor retardation with

16 slowness of movement, slow and monotonous speech with a depressive tone, slow

17 responses to questions, decreased concentration and attention, and impaired

18 cognitive functioning. (AR 274). He also observed that plaintiff had restricted

19 affect and was depressed, apathetic, withdrawn, and anxious. (AR 274). Dr.

20 Abejuela noted perceptual disturbance, with paranoid ideations and auditory and

21 visual hallucinations, as well as poor impulse control and inadequate insight. (AR

22 274). Moreover, plaintiff demonstrated a decreased attention span and

23 concentration, with impaired short-term and long-term memory. (AR 274). Dr.

24 Abejuela opined that the objective findings in the mental status examination were

25 consistent with plaintiff’s subjective symptoms of depression and anxiety. (AR

26 275). He diagnosed plaintiff with “Schizophrenia, Paranoid vs. Bipolar Disorder”

27 (AR 275), and opined that plaintiff was moderately impaired in his occupational

28 and social functioning (AR 277). More specifically, Dr. Abejuela noted that

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1 plaintiff was moderately impaired in his ability to perform daily activities; to

2 maintain social functioning; to maintain concentration, persistence, and pace; to

3 understand, carry out, and remember simple or complex instructions; to respond to

4 coworkers, supervisors, and the public; to respond appropriately to usual work

5 situations; and to deal with changes in a routine work setting. (AR 276-77).

6 Dr. Heather M. Abrahimi, Psy.D., a state agency psychological consultant,

7 reviewed the record and assessed plaintiff’s mental functioning on May 11, 2017.

8 (AR 89-94). Dr. Abrahimi gave significant weight to Dr. Abejuela’s opinion and

9 purported to adopt it for her assessment. (AR 90, 92). She found that plaintiff was

10 moderately limited in his ability to understand, carry out, and remember detailed

11 instructions; to maintain attention and concentration for extended periods; to

12 perform activities within a schedule, maintain regular attendance, and be punctual

13 within customary tolerances; to work in coordination with or in proximity to others

14 without being distracted by them; to complete a normal workday and workweek

15 without interruptions from psychologically based symptoms; to perform at a

16 consistent pace without an unreasonable number and length of rest periods; to

17 interact appropriately with the general public; to get along with coworkers or peers

18 without distracting them or exhibiting behavioral extremes; to respond

19 appropriately to changes in the work setting; and to set realistic goals or make

20 plans independently of others. (AR 92-94). Dr. Abrahimi found, however, that

21 plaintiff was “not significantly limited” in his ability to understand, remember, and

22 carry out simple instructions; to make simple work-related decisions; to sustain an

23 ordinary routine without special supervision; to ask simple questions or request

24 assistance; to accept instructions and respond appropriately to criticism from

25 supervisors; to maintain socially appropriate behavior; to be aware of normal

26 hazards and take appropriate precautions; and to travel in unfamiliar places or use

27 public transportation. (AR 93-94). Dr. Abrahimi thus opined, overall, that

28 plaintiff can understand, remember and sustain concentration, pace, and persistence

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1 for simple routines throughout a normal workday or workweek; accept routine

2 supervision and interact with coworkers in a non-collaborative and superficial

3 basis; have brief and infrequent public contact; adapt to a routine and predictable

4 work environment; recognize typical hazards; travel to routine locations; and set

5 goals independently within this limited framework. (AR 94).

6 C. ALJ’s Assessment

7 The ALJ assigned little weight to Dr. Abejuela’s examining opinion, while

8 remarking that the opinion “relies on a vague use of ‘moderate’ to describe

9 [plaintiff’s] impairments.” (AR 27). The ALJ gave great weight to Dr. Abrahimi’s

10 non-examining opinion because it was “supported with explanation” and

11 “consistent with the record as a whole.” (AR 27). Based on the ALJ’s assessment

12 of the record overall, the ALJ found that plaintiff retains the residual functional

13 capacity to: (i) understand, remember, and sustain concentration, pace, and

14 persistence for simple routines throughout a normal workday and workweek;

15 (ii) accept routine supervision and interact with coworkers in a non-collaborative

16 and superficial basis; (iii) have brief and infrequent public contact; (iv) adapt to a

17 routine and predictable work environment; (v) recognize typical hazards; (vi) travel

18 to routine locations; and (vii) set goals independently. (AR 25).

19 D. Analysis

20 The ALJ failed to provide any specific, legitimate, legally sufficient reasons

21 to reject Dr. Abejuela’s opinion. The ALJ’s sole reason – that the opinion “relies

22 on a vague use of ‘moderate’” (AR 27) – does not suffice, particularly as it fails to

23 account for how this commonly used term, “moderate,” could be so “vague” as to

24 render the opinion unusable or unreliable.3 See King v. Comm’r of Soc. Sec.

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27 3Indeed, the ALJ himself used this term, at step two of his analysis (AR 24-25) – as did

Dr. Abrahimi, the nonexamining psychiatric consultant, albeit while also providing a narrative

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(continued...)

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1 || Admin., 475 F. App’x 209, 209-10 (9th Cir. 2012) (Reinhardt, J., dissenting)

2 || (“Courts, physicians, vocational experts . . . and other ALJs use the term ‘mild to

3 || moderate’ to describe and assess claimants’ limitations without any difficulty.”’);

4 || Dean v. Colvin, 2015 WL 6158874, at *7 (W.D. Wash. Sept. 29, 2015) (“[T]he

5 || Court is particularly troubled by the ALJ's rejection of Dr. Dixon’s opinion as

6 || ‘vague’ based primarily upon Dr. Dixon’s use of terms such as ‘mild,’ ‘moderate,’

7 || ‘marked,’ or ‘severe’ to describe plaintiff's functional capacity — terms which are

8 || commonly used to describe claimant’s limitations in the social security context.’’),

9 || report and recommendation adopted, 2015 WL 6158913 (W.D. Wash. Oct. 19,

10 || 2015). Moreover, if the ALJ found the term “moderate” to be so vague or

11 || ambiguous, the ALJ had a duty to develop the record by contacting Dr. Abejuela to

12 | clarify the ambiguity. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir.

13 | 2001) (“An ALJ’s duty to develop the record further is triggered only when there is

14 || ambiguous evidence or when the record is inadequate to allow for proper

15 || evaluation of the evidence.’’); see also Dean, 2015 WL 6158874, at *7 (“[I]f the

16 || ALJ found Dr. Dixon’s assessment of functional limitations ‘too vague to be

17 || useful’ based primarily upon Dr. Dixon’s failure to define the terms ‘mild’ and

18 || ‘moderate’ in his assessment, the ALJ should have simply re-contacted Dr. Dixon

19 || and requested further clarification of his opinion.”) (citing Mayes, 276 F.3d at 459-

20 || 60). The ALJ’s failure to develop the record on this issue, or otherwise to provide

21 || a reasonable, legitimate reason for rejecting the opinion, was error. See, e.g.,

22 || Lisardo S. v. Berryhill, 2019 WL 773686, at *6 (C.D. Cal. Feb. 20, 2019) (ALJ

23 || erred in discounting examining physician’s opinion by finding use of the term

24 || “moderate” was “vague and unclear” because it was not defined and did not

25 || specify functional abilities); Vasquez v. Berryhill, 2017 WL 2633413, at *7 (E.D.

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description of plaintiff's abilities that, to some extent, took the “moderate” limitations into

28 account (see AR 92-94),

1 Cal. June 19, 2017) (ALJ could not properly reject examining physician's opinion

2 that claimant had moderate limitations by stating that the definition of the term

3 “moderate” was “vague and ambiguous”).

4 Defendant contends that any error was harmless because the ALJ gave great

5 weight to the opinion of the non-examining psychiatric consultant, Dr. Abrahimi,

6 who in turn had expressly adopted Dr. Abejuela’s examining opinion as the basis

7 for her assessment. (Defendant’s Motion at 5-6; see AR 27, 90, 92). Thus, in

8 defendant’s view, by relying on Dr. Abrahimi’s opinion to conclude that plaintiff

9 was capable of “simple,” “routine” tasks, with additional social limitations, the

10 ALJ “incorporated the moderate limitations Dr. Abejuela assessed,” despite stating

11 that he gave Dr. Abejuela’s opinion little weight. (Defendant’s Motion at 4) (citing

12 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)).

13 However, defendant fails to acknowledge that, unlike Dr. Abrahimi, Dr.

14 Abejuela opined that plaintiff was moderately impaired in his ability to understand,

15 remember, and carry out even simple instructions.4 (AR 276-77). The ALJ did not

16 include any comparable limitation in his assessment, and instead found plaintiff

17 capable of understanding, remembering, and performing “simple routines

18 throughout a normal workday and workweek.” (AR 25). As such, the ALJ’s

19 assessment at least arguably conflicts with the moderate limitations assessed by Dr.

20 Abejuela, and certainly cannot be said to have “incorporated” those limitations.

21 Compare Stubbs-Danielson, 539 F.3d at 1173-74 (ALJ’s assessment limiting the

22 claimant to “simple, routine, repetitive” work adequately accounted for medical

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24 4Dr. Abrahimi found plaintiff “[n]ot significantly limited” in this respect. (AR 92).

However, she did not explain why her opinion differed on this point, despite her statement that

25 Dr. Abejuela’s opinion was “adopted because it [was] provided by an examining source and

consistent with the objective evidence and [plaintiff’s] function.” (AR 92). The ALJ, too, never

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acknowledged this difference. Indeed, when assessing the two medical opinions of plaintiff’s

27 mental limitations, the ALJ never mentioned that Dr. Abrahimi purported to adopt Dr.

Abejuela’s opinion, and never addressed the particular similarities or differences between the

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two opinions. As a result, it is unclear whether the ALJ gave these opinions due consideration.

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1 opinions that claimant had a “slow pace,” both in thinking and actions, and was

2 moderately limited in her ability “to perform at a consistent pace,” but still retained

3 the ability “to carry out simple tasks”).

4 Accordingly, the ALJ erred by failing to provide a legally sufficient

5 explanation for discounting the opinion of Dr. Abejuela, the only medical source in

6 the record to examine plaintiff regarding mental limitations. Because the ALJ

7 relied instead on the nonexamining opinion of Dr. Abrahimi, which partly conflicts

8 with Dr. Abejuela’s assessed moderate limitations, the Court cannot conclude that

9 the error was harmless. See Treichler, 775 F.3d at 1099 (ALJ error harmless if

10 (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path

11 may reasonably be discerned despite the error) (citation omitted). Remand is

12 therefore warranted for reconsideration of these opinions.

13 V. CONCLUSION

14 For the foregoing reasons, the decision of the Commissioner of Social

15 Security is REVERSED and this matter is REMANDED for further administrative

16 action consistent with this Opinion.5

17 LET JUDGMENT BE ENTERED ACCORDINGLY.

18 DATED: May 31, 2021

19 _____________/s/____________________

Honorable Jacqueline Chooljian

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UNITED STATES MAGISTRATE JUDGE

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25 5When a court reverses an administrative determination, “the proper course, except in

rare circumstances, is to remand to the agency for additional investigation or explanation.”

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Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and

27 quotations omitted); Treichler, 775 F.3d at 1099 (noting such “ordinary remand rule” applies in

Social Security cases) (citations omitted). The Court has determined that a reversal and remand

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for immediate payment of benefits would not be appropriate.

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