Crystal Monique Richard v. Martin O'Malley

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10

11 CRYSTAL M. R., ) NO. ED CV 23-1211-E

)

12 Plaintiff, )

)

13 v. ) MEMORANDUM OPINION

)

14 KILOLO KIJAKAZI, Acting ) AND ORDER OF REMAND

Commissioner of Social Security, )

15 )

Defendant. )

16 ___________________________________)

17

18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

19 HEREBY ORDERED that this matter is remanded for further administrative

20 action consistent with this Opinion.

21

22 PROCEEDINGS

23

24 Plaintiff filed a complaint on June 22, 2023, seeking review of

25 the Commissioner’s denial of disability benefits. The parties

26 consented to proceed before a United States Magistrate Judge on

27 July 7, 2023. Plaintiff filed “Plaintiff’s Opening Brief” on

28 September 21, 2023. Defendant filed “Defendant’s Brief” on

1 October 23, 2023. Plaintiff did not file a timely reply brief.

2

3 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

4

5 Plaintiff asserts disability based primarily on alleged mental

6 impairments (Administrative Record (“A.R.”) 248-49, 270). An

7 Administrative Law Judge (“ALJ”) found Plaintiff has the following

8 severe mental impairments: “bipolar disorder with psychotic features,

9 depressive disorder, general anxiety disorder and personality

10 disorder” (A.R. 127-28). The ALJ determined that these severe

11 impairments reduced Plaintiff’s residual functional capacity such that

12 Plaintiff can only “understand, remember and carry out simple

13 instructions but not at a specific production rate, such that she

14 could not perform assembly line work. She can make simple work-

15 related decisions and tolerate occasional changes in a routine work

16 setting. She can occasionally interact with supervisors and co-

17 workers but she should not work with the public” (A.R. 131).

18

19 In assessing the above residual functional capacity, the ALJ

20 purported to have been “highly persuaded by the opinion of Dr.

21 Chronister . . .” (A.R. 134). Dr. Chronister, a consultative

22 examining psychologist, authored a narrative report containing several

23 opinions regarding Plaintiff’s functional capacity (A.R. 488-91). One

24 of these opinions was the opinion that Plaintiff’s ability to maintain

25 regular workplace attendance “is moderately impaired” (A.R. 491).

26

27 A vocational expert testified that a person having the residual

28 functional capacity assessed by the ALJ could perform certain jobs

existing in significant numbers in the national economy (A.R. 37-38).

The ALJ relied on this testimony in finding Plaintiff not disabled

3] (A.R. 135-36). The vocational expert also testified, however, that a

4|| person absent from the workplace twice each month could not perform

5] any job (A.R. 39).

6

7 The ALJ denied disability benefits (A.R. 136). The Appeals

8] Council denied review (A.R. 142-44).

9

10 STANDARD OF REVIEW

11

12 Under 42 U.S.C. section 405(g), this Court reviews the

Administration’s decision to determine if: (1) the Administration’s

14] findings are supported by substantial evidence; and (2) the

Administration used correct legal standards. See Carmickle v. Comm’r,

16] 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071,

17] 1074 (9th Cir. 2007); see also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such

19] relevant evidence as a reasonable mind might accept as adequate to

20|| support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971) (citation and quotations omitted); see Widmark v. Barnhart, 454

F.3d 1063, 1066 (9th Cir. 2006).

23

24 DISCUSSION

25

26 Plaintiff argues, inter alia, that the ALJ did not properly

27| translate into the residual functional capacity assessment the

28| moderate impairment of Plaintiff's ability to maintain regular

1|| workplace attendance. Defendant argues that the ALJ did properly

2| translate this impairment into the residual functional capacity

3] assessment, asserting that the assessment’s limitation of Plaintiff to

“simple” work adequately accounted for the impairment.

5

6 Defendant’s argument is unpersuasive in logic as well as in case

7) law. It strains logic to suggest that limiting the complexity of the

8| tasks to be performed at work somehow accounts for an impairment ina

9] person’s ability to make it to work in the first place. Most of the

judges in this Circuit who have considered the issue have held that a

11] limitation to “simple” work does not account for a moderate impairment

12] in the ability to maintain regular workplace attendance. See, e.gq.,

Millsap v. Kijakazi, 2023 WL 4534341, at *5-6 (E.D. Cal. July 13,

14] 2023); Macias v. Saul, 2021 WL 856423, at *6 (E.D. Cal. March 8,

2021); Christopher G. v. Saul, 2020 WL 2079972, at *6 (C.D. Cal.

16] Apr. 30, 2020); Raymond v. Berryhill, 2018 WL 3691842, at *5 (C.D.

Cal. Aug. 2, 2018); Panziera v. Berryhill, 2018 WL 278623, at *20

18 (N.D. Cal. Jan. 3, 2018); Wiles v. Berryhill, 2017 WL 5186333, at *3

19 (C.D. Cal. Nov. 8, 2017); cf. Bagby v. Comm’r, 606 Fed. App’x 888, 890

20] (9th Cir. 2015) (reduction to “simple, repetitive tasks” fails to

account for moderate limitations in ability to “respond appropriately

22| to usual work situations and to changes in a routine work setting”).

23

24 The published Ninth Circuit decision on which Defendant appears

25|| to place principal reliance, Stubbs-Danielson v. Astrue, 539 F.3d 1169

(9th Cir. 2008) (“Stubbs-Danielson”) is inapposite. There, the Ninth

27| Circuit held that a limitation to simple work adequately translated

28|| moderate limitations in “concentration, persistence and pace.” Id. at

1174. “However, the Ninth Circuit and district courts in the Ninth

Circuit have held that Stubbs-Danielson does not control in cases

3] where, as here, the limitations relate to functional areas other than

4|| concentration, persistence, and pace, such as .. . attendance.”

5| Millsap v. Kijakazi, 2023 WL 4534341, at *5 (citation and quotation

6|| omitted); see Macias v. Saul, 2021 WL 856423, at *6 (“Stubbs-Danielson

7|| is distinguishable as the moderate restrictions at issue here involve

8] limitations in maintaining attendance and completing a normal workday,

not limitations in concentration, persistence or pace”); accord

10] Panziera v. Berryhill, 2018 WL 278623, at *20.

11

12 Defendant also suggests that the opinions of Dr. Paxton, a non-

examining state agency review physician, support Defendant’s argument

that a limitation to simple work adequately accounts for an impairment

15] in regular attendance. This suggestion must be rejected. Unlike Dr.

Chronister, Dr. Paxton opined that Plaintiff’s ability to maintain

regular attendance was “[n]lot significantly limited” (A.R. 111)

(emphasis added) .’

19

20 If, contrary to Defendant’s argument, the ALJ actually rejected

Dr. Chronister’s opinion regarding the impairment of regular workplace

22| attendance (in favor of Dr. Paxton’s contrary opinion or otherwise),

23|| the ALJ erred by failing to explain the rejection. See Social

Security Ruling (“SSR”) 96-8P (“If the [residual functional capacity]

25| assessment conflicts with an opinion from a medical source, the

26

27 * The ALJ deemed certain opinions of Drs. Chronister and

28 Paxton to be “consistent with each other,” but did not discuss

the material inconsistency noted herein (A.R. 134-35).

1] adjudicator must explain why the opinion was not adopted”; “The

2| adjudicator must also explain how any material inconsistencies or

ambiguities in the evidence in the case record were considered and

resolved”) ;? accord Millsap v. Kijakazi, 2023 WL 4534341, at *5

5| (applying SSR 96-8P to implicit rejection of an impairment in the

6| claimant’s capacity to maintain regular attendance); see also Woods v.

7| Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (under the new

regulations, the ALJ need not state specific, legitimate reasons for

9|| rejecting the opinion of an examining physician, but still must

10] provide some explanation for the rejection); Heather R. v. Saul, 2021

11] WL 3080331, at *22-23 (D. S.D. July 21, 2021) (ALJ erred by appearing

implicitly to reject doctor’s opinion that claimant would be

moderately impaired in maintaining regular attendance, although the

ALJ purportedly had given “great weight” to other opinions by the same

doctor); Wiles v. Berryhill, 2017 WL 5186333, at *3 (ALJ erred by

16] failing to state reasons for implicitly rejecting doctor’s opinion

17] that claimant would have moderate limitations in maintaining regular

18] attendance).

19

20 The Court is unable to find the ALJ’s error(s) to have been

harmless. “[A]n ALJ’s error is harmless where it is inconsequential

22| to the ultimate nondisability determination.” Molina v. Astrue, 674

F.3d 1104, 1115 (9th Cir. 2012) (citations and quotations omitted),

24|| superseded by regulation on other grounds as stated in Sisk v. Saul,

820 Fed. App’x 604, 606 (9th Cir. 2020); see McLeod v. Astrue, 640

F.3d 881, 887 (9th Cir. 2011) (error not harmless where “the reviewing

7

28 2 SSRs are binding on the Administration. See Terry v.

Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990).

1 court can determine from the ‘circumstances of the case’ that further

2 administrative review is needed to determine whether there was

3 prejudice from the error”). Here, the vocational expert testified

4 that a person absent from the workplace even as infrequently as twice

5 each month could not perform any job (A.R. 39).

6

7 Defendant argues that the moderate impairment in Plaintiff’s

8 ability to maintain regular workplace attendance found to exist by Dr.

9 Chronister would not materially affect Plaintiff’s ability to maintain

10 regular workplace attendance. Defendant appears to argue that a

11 “moderate” impairment always permits the impaired person to “function

12 satisfactorily,” citing Social Security Form HA-1152-U3. Defendant’s

13 argument cannot be accepted on the present record. Dr. Chronister did

14 not define the operative terms in the doctor’s report. Dr. Chronister

15 did not employ Social Security Form HA-1152-U3. Examining physicians

16 do not always ascribe to a “moderate” impairment the meaning for which

17 Defendant argues. See, e.g., Bisconer v. Berryhill, 2018 WL 1041316,

18 at *4 (D. Or. Feb. 1, 2018), adopted, 2018 WL 1040089 (D. Or. Feb. 23,

19 2018) (“The word ‘moderate’ is ambiguous in the context of work

20 attendance, and neither Dr. Strabinger nor the ALJ clarified the

21 effects of a ‘moderate’ impairment. . . . As it stands, therefore,

22 the record is ambiguous as to whether [the claimant’s] moderate

23 impairment translates into more than two missed workdays per month,

24 and the ALJ failed to address the ambiguity in his opinion”); Johnson

25 v. Colvin, 2015 WL 1501789, at *2 (N.D. Cal. March 31, 2015) (in a

26 follow-up questionnaire, the doctor stated that a moderate limitation

27 on the claimant’s ability to maintain regular work attendance is

28 likely to cause the claimant to be absent from work more than four

1] days per month); Colon v. Colvin, 2014 WL 6685474, at *6 (N.D.N.Y.

2| Nov. 26, 2014) (“terms like ‘moderate’ are inherently vague and the

3|| Commissioner has provided no specific definitions, other than to

4|| explain that ‘moderately limited’ means only that a claimant’s

capacity is impaired; it does not indicate the degree and extent of

6] the limitation”) (citations and quotations omitted); see also Grisham

v. Colvin, 2014 WL 7140980, at *3 (E.D. Cal. Dec. 12, 2014) (when a

doctor renders a narrative opinion, and does not use Form HA-1152-U3,

9] the form’s definition of “moderate” should not be imputed to the

10] doctor) .’

11

12 At a minimum, the uncertainty regarding the meaning of the

operative terms in Dr. Chronister’s report should have prompted the

14] ALJ to seek clarification from Dr. Chronister. Only Dr. Chronister

15] knows for certain the intended meaning of those arguably ambiguous

16] terms. “The ALJ has a special duty to fully and fairly develop the

record and to assure that the claimant’s interests are considered.

18] This duty exists even when the claimant is represented by counsel.”

19] Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983); accord Garcia v.

20] Comm’r, 768 F.3d 925, 930 (9th Cir. 2014); see also Sims v. Apfel, 530

21] U.S. 103, 110-11 (2000) (“Social Security proceedings are

22|| inquisitorial rather than adversarial. It is the ALJ’s duty to

investigate the facts and develop the arguments both for and against

24| granting benefits. . . .”); McLeod v. Astrue, 640 F.3d at 885 (ALJ

25

26 3 In any event, the ALJ’s failure to rely on the

definition of “moderate” in Form HA-1152-U3 would preclude this

Court from utilizing that definition to affirm the ALJ’s

28 decision. See Vasquez v. Berryhill, 2017 WL 2633413, at *7 (E.D.

Cal. June 16, 2017) (and cases cited therein).

1|| must develop record when there is ambiguous evidence). Here, the

ALJ’s failure to seek clarification constituted additional error. See

3) id.; Robin R.A. v. Kijakazi, 2022 WL 1599839, at *3 (C.D. Cal. Apr. 5,

4|| 2022) (“The ambiguity in Dr. Chronister’s opinion [regarding a

5] ‘moderate’ impairment in maintaining attendance] .. . should have

6|| prompted the ALJ to seek clarification from Dr. Chronister”); see also

Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (while it is

8] a claimant’s duty to provide the evidence to be used in making a

residual functional capacity determination, “the ALJ should not be a

10] mere umpire during disability proceedings”) (citations and internal

11] quotations omitted).

12

13 Remand is appropriate because the circumstances of this case

suggest that further development of the record and further

15| administrative review could remedy the ALJ’s errors. See Treichler v.

16] Comm’r, 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where, as in this case,

17] an ALJ makes a legal error, but the record is uncertain and

unambiguous, the proper approach is to remand the case to the

19] agency”); McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura,

537 U.S. 12, 16 (2002) (upon reversal of an administrative

21| determination, the proper course is remand for additional agency

22|| investigation or explanation, except in rare circumstances); Leon v.

23|| Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017) (reversal with a

24|| directive for the immediate calculation of benefits is a “rare and

25|| prophylactic exception to the well-established ordinary remand rule”);

26|| Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the

27| district court concludes that further administrative proceedings would

28|| serve no useful purpose, it may not remand with a direction to provide

1 benefits”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert.

2 denied, 531 U.S. 1038 (2000) (remand for further proceedings rather

3 than for the immediate payment of benefits is appropriate where there

4 are “sufficient unanswered questions in the record”); compare

5 Brown-Hunter v. Colvin, 806 F.3d 487, 495-96 (9th Cir. 2015)

6 (discussing the narrow circumstances in which a court will order a

7 benefits calculation rather than further proceedings). There remain

8 significant unanswered questions in the present record.

9

10 CONCLUSION

11

12 For the foregoing reasons, the decision of the Administration is

13 reversed in part and the matter is remanded for further administrative

14 action consistent with this Opinion.

15

16 LET JUDGMENT BE ENTERED ACCORDINGLY.

17

18 DATED: November 14, 2023.

19

20

/S/

21 CHARLES F. EICK

UNITED STATES MAGISTRATE JUDGE

22

23

24

25

26

27

28